Draft-Do Not Cite without Permission from the Author

STARE DECISIS AND FOREIGN AFFAIRS

MICHAEL P. VAN ALSTINE

INTRODUCTION

I. THE FOUNDATIONS OF STARE DECISIS

A. Understanding the Notion of Precedent

B. The Values that Animate Stare Decisis

C. The Stare Decisis Anti-Values: The Justifications for Reexamining Precedent

D. Institutional and Instrumental Considerations

E. The Unexamined Boundaries of Stare Decisis

II. SEPARATION OF POWERS AND FOREIGN AFFAIRS

A. The Constitution’s Core Allocations of Authority in Foreign Affairs

B. Judicial Reticence, Judicial Deference

C. The Significant and Expanding Judicial Responsibilitiesin Foreign Affairs Lawmaking

III. EXAMINING THE SPECIAL RELATIONSHIP BETWEEN STARE DECISIS AND FOREIGN AFFAIRS

A. The Special Responsibility of the Judicial Station

B. Destabilized Values: The Limits of Authority, Stability, and Legitimacy

1. Stability and Exogenous Force of Change: Uni-Polar Stare Decisisin a Multi-Polar System

2. Expertise and the Risks of Error

C. Separation of Powers, Stare Decisis, and Article III International Law

1. Legitimacy and the Blurring of Law-Finding with Law-Making

2. The Uneasy Role of Congress and the Availability of Legislative Override

3. Accommodating the Executive’s Special Responsibilities in Foreign Affairs

IV. THE ARGUMENT DISTILLED: INTEGRATING STARE DECISIS AND FOREIGN AFFAIRS

A. “Special Justifications” and Article III International Law

B. Local Courts, International Obligations: The Special Demands for Stare Decisis Modesty in the Federal Courts of Appeal

CONCLUSION

1

INTRODUCTION

The doctrine of stare decisis and law of foreign affairs seem to inhabit entirely different

jurisprudential worlds with no apparent means of communication. In matters of foreign affairs,

the Supreme Court has often cautioned about the judicial branch’s comparative lack of expertise

and inability to gauge the implications of their judgments for external relations.1 Separately, a

web of deference doctrines and related interpretive presumptions function to protect against

improvident judicial incursions into foreign affairs, especially on matters of international law.2

Together, these related considerations reflect admonitions to the courts about the unfamiliarity of

the terrain and the consequent risks of judicial leadership in the field.

Curiously, however, these concerns seemingly evaporate once a court in fact creates a

precedent. An analysis of stare decisis jurisprudence fails to uncover any sensitivity to the

special risks and “collateral consequences”3 of judicial error in foreign affairs matters. That is,

the ex ante admonitions about improvident judicial action do not even find faint echo in the stare

decisis effect of judicial precedents ex post. My goal here is to mine this curiosity.

The proper role of the judicial branch in foreign affairs has provoked substantial

scholarly debates—historical, institutional, normative—since the very founding of the country.4

1 See Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 386 (2000)(“We have … recognized the limits of our own capacity to “determin[e] precisely when foreign nations will be offended by particular acts”)(quoting Container Corp. of America v. Franchise Tax Bd., 463 U.S. 159, 194 (1983)); Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948)(declaring that decisions in foreign affairs are “delicate, complex, and involve large elements of prophecy … of a kind for which the Judiciary has neither aptitude, facilities nor responsibility”).

2 See infra notes __-__ and accompanying text (analyzing this matter in detail).3 See Sosa v. Alvarez-Machain, 542 U.S. 692, 731 (2004)(emphasizing that the “collateral

consequences” of recognizing domestically enforceable torts in violation of international law).4 For an introduction to the voluminous scholarship on the specific subject of the judicial

abstention see, e.g., Thomas M. Franck, POLITICAL QUESTIONS/JUDICIAL ANSWERS: DOES THE RULE OF LAW APPLY TO FOREIGN AFFAIRS? (1992); Michael D. Ramsey, Toward a Rule of Law in Foreign Affairs, 106 Colum. L. Rev. 1450 (2006); Louis Henkin, Is There a Political Question Doctrine?, 85 YALE L.J. 597 (1976). Few issues have excited scholarly debates like the power of federal courts to apply customary international law on their own initiative. See, e.g., Anthony J. Bellia, Jr. and Bradford R.

2

In all of this, however, the relationship between foreign affairs and stare decisis has found but

little comment5 and no detailed analysis. Likewise, the Supreme Court has never seriously

examined whether the contextual and institutional premises of stare decisis hold in foreign

affairs, even for precedents that define our nation’s sovereign obligations under international

law.6 Indeed, beyond a marginal note by Justice Breyer in a dissent,7 it missed two prime

opportunities to opine on the subject in just the last few years.8

The analysis below will demonstrate that in fact a more nuanced understanding of

precedent is appropriate for certain fundamental aspects of foreign affairs law. Judicial rulings

on constitutional allocation of powers in the field are already subject to a less rigorous version of

stare decisis. In light of the practical impossibility of correction by the political branches, sound

Clark, The Federal Common Law of Nations, 109 COLUM. L. REV. 1 (2009); Harold Hongju Koh, Is International Law Really State Law?, 111 HARV. L. REV. 1824 (1998); Beth Stephens, The Law of Our Land: Customary International Law as Federal Law After Erie, 66 FORDHAM L. REV. 393 (1997); Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997).

5 See Scott & Paul B. Stephan, THE LIMITS OF LEVIATHAN: CONTRACT THEORY AND THE ENFORCEMENT OF INTERNATIONAL LAW 143 (2006)(observing that “interstitial uses of international law” by the judiciary, “are subject to subsequent legislative overruling, but courts also can choose to abandon them on their own initiative in the face of reflection and experience”); Jonathan I. Charney, Judicial Deference in Foreign Relations, in FOREIGN AFFAIRS AND THE US CONSTITUTION 106 (Louis Henkin, Michael J. Glennon & William D. Rogers, eds. 1990)(suggesting that stare decisis need not require “that rules of decision regarding international law in U.S. court cases are binding in all later cases”); Jenny S Martinez, Towards an International Judicial System, 56 STAN. L. REV. 429, 486 (2003)(observing that the difficulty of override by the political branches, which has justified a weakened form of stare decisis in constitutional cases, may apply as well for international law cases). See also Harlan C. Cohen, Undead Wartime Cases: Stare Decisis and the Lessons of History, 84 TUL. L. REV. 957 (2010(analyzing the historical significance of precedents from World War II).

6 The Supreme Court has only rarely paused even to mention stare decisis in such cases. See Clark v. Allen, 331 U.S. 503, 516 (1947)(refusing to revisit a treaty precedent because of consistent judicial interpretation over time and the plain language of the treaty itself); The Adula, 176 U.S. 361, 371 (1900)(refusing to overrule an international law precedent simply “to conform to the opinions of foreign writers as to what they suppose to be the existing law upon the subject”).

7 Sanchez-Llamas v. Oregon, 548 U.S. 331, 389-390 (2006)(Breyer, J., dissenting). See also infra note Error: Reference source not found and accompanying text (analyzing Justice Breyer’s comments).

8 See Medellín v. Texas, 552 U.S. 491 (2008); Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006). See infra notes Error: Reference source not found-Error: Reference source not found and accompanying text (analyzing the implications of these opinions).

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reasons support this.9 The special concern here is instead the broad and expanding swath of

controversies that likewise fall within the Article III “judicial Power” but involve the courts in

the identification of rights or obligations under international law. Inquiries into such matters of

their nature inject the courts into the uncharacteristic position of defining the very content of our

nation’s formal, legal relations with foreign states. The analysis below demonstrates, moreover,

that even the basic premises of stare decisis become unreliable, and in some respects fail to

obtain at all, when courts create precedent on such matters. In this field, in short, judicial first

impressions are particularly susceptible to immediate erosion; both the likelihood and

consequence of judicial error are greater; and institutional considerations make judicial

leadership fortified by rigid stare decisis particularly problematic.

In contrast, foreign policy implications should not compromise the foundations of stare

decisis for purely domestic statutes. Where Congress takes it upon itself to define the entire

content of the law—without importing international norms—the relationship between law-maker

and law-applier is solely a domestic one. To be sure, judicial interpretation may hold

consequences for foreign relations. But fidelity to the value judgments first made by Congress

within its constitutionally delegated authority should address any concerns about independent

judicial agency in foreign affairs lawmaking. Standard approaches to precedent founded on

standard institutional relationships remain appropriate here.

Part I below first sets the context with a review of the values that animate, and the forces

that degrade, the notion of adherence to precedent.10 We also will see there that institutional

considerations are equally significant for understanding stare decisis in action. Constitutional, as

compared to statutory, precedents enjoy less respect not only because of the infeasibility of

9 See infra notes __-__ and accompanying text.10 See infra Part II.A.-C.

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legislative override, but also out of an appreciation of the respective constitutional stations of the

judicial branch and Congress.11 This Part will then explore the little-noted, but subtly important,

jurisdictional premises of stare decisis.12 This latter point, in particular, will return to significance

in the analysis to follow.

Part II then provides a concise review of the Constitution’s arrangement of authority over

foreign affairs.13 Here as well, Congress remains the preeminent domestic lawmaker. But from

text and structure, the Constitution also allocates special responsibilities to the executive in

managing our nation’s relations with foreign states. This enhanced executive authority provides

the backdrop for the web of admonitions mentioned above about the risks of untutored judicial

action in foreign affairs, especially on matters of international law.14 The friction arises,

however, from the expanding authority of the courts to participate in the very definition of

international law rights and obligations. I will refer to this field of foreign affairs law here as

“Article III international law.” To appreciate the significance of this friction, Part II canvasses

the multiplicity of avenues—treaties, “treaty-statutes,” delegated lawmaking authority,

“international law cum common law,”15 executive agreements, meta-norms of interpretation—by

which our legal system now channels such matters into the enforcement authority of the courts.16

This all provides the foundation for an analysis of proper relationship between the

doctrine of stare decisis and the Article III “judicial Power”17 in matters of foreign affairs. Part

11 See infra Part II.C.12 See infra Part II.D.13 See infra Part III.A.14 See infra Part III.B.15 See Sosa v. Alvarez-Machain, 542 U.S. 692 (2006)(coining this term to describe federal

common law on the foundation of international law).16 See infra Part III.C.17 U.S. const., art. III, § 1.

5

III will explain why the judicial enforcement of Article III international law differs as a matter of

kind, not merely of degree, from the application of law with a purely domestic content.18 The

necessary consequence of precedent on Article III international law is a definition of rights or

obligations that govern in our nation’s legal relations with foreign states. Indeed, one might

view this as the “hardest” form of foreign relations law.19 The gravity of this responsibility,

properly appreciated, should alone give cause for sensitivity over cloaking such precedents with

full stare decisis effect.

But careful analysis reveals that even the values that animate stare decisis become

unstable when courts create precedents on Article III international law.20 Although validated by

domestic authorities, the origin of the legal rules in this field—the source from which they

emerge and derive their content—remains the international legal system. And unlike purely

domestic statutes, the only mechanism for authoritative judicial interpretation and clarification is

a multi-polar and cooperative system that entirely lacks hierarchical integration.

As a result, the factual and doctrinal premises of a “final” decision even by the Supreme

Court on an international law norm may be subject to almost immediate destabilization in the

very legal system from which the norm emerged and in which it continues to operate. This again

paints a contrast with law of a purely domestic origin. On those matters, all forces of legal

change (subject to prospective legislative intervention) should be endogenous to the system and

thus within the final judicial control of the Supreme Court. Moreover, on Article III

international law, the cultural, political, legal, and linguistic differences among the law-makers

18 See infra Part III.A.19 See Restatement of Foreign Relations, supra note __, § 1(stating that the foreign relations law

of the United States “consists of … international law as it applies to the United States”).20 See infra Part III.B.

6

greatly increase the risk of judicial error in the first place.21 All of this combines to compromise

the “calm”22 stare decisis is designed to secure and reinforce.

An institutional perspective on stare decisis also justifies a differential treatment of

Article III international law and purely domestic foreign affairs statutes. This is the subject of

the final section of Part III.23 There, I first explain why the enforcement of Article III

international law involves a kind of problematic judicial discretion, and thus judicial leadership,

that differs in its essence from the application of purely domestic law. I then confront the most

immediate and significant institutional counter-argument: the availability of congressional

override. Consistent with its position as preeminent domestic lawmaker, Congress should have

the power to overturn a judicial precedent on Article III international law as well.24 Ultimately,

however, this argument does not convincingly address the problematic effects of judicial

leadership on the sensitive subject of international legal relations. For as I will describe in detail

below, it relies on an inversion of the Constitution’s prescribed lawmaking sequence—Congress

creates, the courts apply—for law Congress did not adopt in the first place.

Part III concludes with an analysis of the special responsibilities of the executive in

foreign affairs. We will see there that a properly calibrated notion of stare decisis must indeed

afford appropriate deference to the executive branch. But it also must not result in an abdication

of the fundamental judicial “province and duty … to say what the law is.”25

21 See infra Part III.B.2.22 Stare decisis derives from the Latin maxim stare decisis et non quieta movere, that is, to “stand

by that decided and do not disturb the calm.”23 See infra Part III.C.24 Indeed, in response to Hamdan v. Rumsfeld, 548 U.S. 557 (2006), Congress did just that in the

Military Commissions Act of 2006. See §6(a)(2), Pub. L. No. 109-366, 120 Stat. 2600, 2631-32 (codified in scattered sections of 18 and 28 U.S.C.)(defining “grave breach” of Article 3 of the Third Geneva Convention and declaring that this definition “fully satisfy[ies]” the obligations of the United States under the Convention).

25 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

7

In the final Part below, I distill the various themes into a summary analysis.26 I conclude

that extant stare decisis norms retain their validity for purely domestic statutes, even those with

foreign affairs effects. Matters are different, however, for Article III international law. The

message of the analysis is not that the values of stability, predictability, and judicial legitimacy

are categorically absent in this field. Rather, the special considerations that attend judicial

enforcement of Article III international law should be understood as one significant weight on

the scale—an additional “special justification” for reassessing the original and continuing

validity of a precedent. Enhanced stare decisis modesty of this type, moreover, should

strengthen the institutional position of the judiciary; for it would permit (but not require)

reexamination of a precedent as an alternative to routine ex ante deference to executive branch

policy preferences.

Finally, the argument for increased flexibility on Article III international law precedents

is especially compelling for the federal courts of appeal. These regional courts create the vast

bulk of precedents on international law matters as well. Because of this, I address their

particularly misguided, and nearly absolutely rigid, stare decisis practices in a separate section at

the end.27

Over the years, an aphorism by Justice Louis Brandeis from the early part of the last

century has become a darling of stare decisis enthusiasts. “In most matters,” he proposed, “it is

more important that the applicable rule of law be settled than that it be settled right.”28 The

analysis here suggests strongly, however, that our legal system should not view the significant

and sensitive subject of Article III international law as one of those routine “most matters.” In 26 See Part IV.A.27 See Part IV.B.28 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932)(Brandeis, J., dissenting). For

recent endorsements by the Supreme Court see, e.g., John R. Sand & Gravel Co. v. U.S., 552 U.S. 130, 139 (2008); Agostini v. Felton, 521 U.S. 203, 235 (1997).

8

any event, neither of Justice Brandeis’s alternative propositions fully holds for disputed issues in

the field. The special circumstances that obtain there decrease, perhaps substantially, the

likelihood that a first judicial impression actually will settle the matter or even be right in the

first place.

I. THE FOUNDATIONS OF STARE DECISIS

A. Understanding the Notion of Precedent

For the common law mind, steeped in the tradition of progressive advancement on the

foundation of progressively refined reason, there is a self-evident quality to the notion of

precedent. It appeals to primal desires for—and, in system of laws, justified expectations of—

rationality, regularity, and stability. Indeed, Benjamin Cardozo’s famous metaphor that judges

merely lay their “own course of bricks on the secure foundation of the courses” of their

forebears29 is now so ingrained in the common law tradition as to seem almost trite.30

But stare decisis also marches in service of loftier causes. Stripped to its essence, the

concept of precedent is a self-imposed rule of law norm for the judiciary.31 That is, by

constraining situational discretion, it reflects the proposition that objectively determined rules of

law bind an independent judicial branch as well. Indeed, it may be a jurisprudential imperative.

29 Benjamin Cardozo, THE NATURE OF THE JUDICIAL PROCESS 149 (1921).30 Justice Stevens was a particular fan of this quote. See, e.g., District of Columbia v. Heller, __

U.S. __, 128 S. Ct. 2783, 2824 (2008)(Stevens, J. dissenting); Rita v. U.S., 551 U.S. 338, 360-361 (2007)(Stevens, J., concurring); Hubbard v. U.S.,, 514 U.S. 695, 711 (1995)(Stevens, J.).

31 See Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989)(“[I]t is indisputable that stare decisis is a basic self-governing principle within the Judicial Branch[.]”). See also Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723, 752 (1988)(“A general judicial adherence to constitutional precedent supports a consensus about the rule of law, specifically the belief that all organs of government, including the Court, are bound by the law.”)

9

As Justice Breyer confidently declared in Randall v. Sorrell,32 “the rule of law demands that

adhering to our prior case law be the norm.”33

Self-evident propositions can be tricky things, however. The Constitution nowhere

expressly empowers the federal judiciary to endow their own opinions with a legal force that

binds subsequent appliers and enforcers. And on the foundation of Erie Railroad Co. v.

Tompkins,34 federal courts “do not possess a general power to develop and apply their own rules

of decision.”35 Stare decisis butts up against this principle as we approach its more absolute

edges. For however faithful a court may be in discerning the law established by others,

communication across time, institution, and circumstance inevitably involves uncertainty, and

thus choice. The power to interpret, in short, is infected with the temptation, and sometimes the

need, to create—a point that will return to significance in the analysis below.36 A version of

stare decisis that would consecrate every legal ruling with unyielding permanence thus would

transform the judicial law-finders into law-makers in every sense but name.

It should not surprise, therefore, that the Supreme Court has founded its modern canon

not on constitutional compulsions or even powers, but rather on prudential impulses anchored, as

we have seen, in the rule of law.37 As is so often the case in this area, the Court in fact has a

quotation of ancient lineage ready-made for any serious discussion of the doctrine: “[I]t is

32 548 U.S. 230 (2006).33 Id., at 244. See also Planned Parenthood v. Casey,505 U.S. 833, 854 (1992)(“[T]he very

concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.”).

34 304 U.S. 64 (1938).35 City of Milwaukee v. Illinois, 451 U.S. 304, 312 (1981).36 See infra notes __-__ and accompanying text.37 See, e.g., Randall v. Sorrell, 548 U.S. 230, 243-244 (2006); Harris v. U.S., 536 U.S. 545,

(2002); Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992); Hilton v. South Carolina Public Railways Comm’n, 502 U.S. 197, 202 (1991); Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989); Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468, 494 (1987).

10

common wisdom,” it has frequently observed, “that stare decisis is not an ‘inexorable

command.’”38 It is, rather, “a principle of policy,” not a “mechanical formula of adherence to the

latest decision.” 39

The use of the word “policy” here carries a serious risk of misdirection, however. To

some realist skeptics, the absence of an absolute formula has served merely to open the gate for

selective and subjective manipulation to suit normative predilections.40 But the Supreme Court

“time and again” has emphasized the “fundamental importance” of stare decisis for the rule of

law in our case-based system.41 And as we shall see below, this observation has teeth, for

departure from precedent is an “exceptional” circumstance founded only on a “compelling”

justification.42

B. The Values that Animate Stare Decisis

The notion that judges should adhere to authoritative decisions of the past has a deep

lineage in our common law system.43 With over two hundred years of domestic judicial

38 Planned Parenthood v. Casey, 505 U.S. 833, 854 (1991)(quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-411 (1932)(Brandeis, J., dissenting)). See also, e.g., Lawrence v. Texas, 539 U.S. 558, 577 (2003)(same); Harris v. U.S., 536 U.S. 545, (2002)(same).

39 See also Citizens United v. Federal Election Com’n, __ U.S. __, 130 S.Ct. 876, 911-912 (2010)(quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940)). See also Leegin Creative Leather Products, Inc. v. PSKS, Inc., 577 U.S. 877, 899 (2007)(observing that “[s]tare decisis reflects a policy judgment that in most matters it is more important that the applicable rule of law be settled than that it be settled right”)(quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997))(internal quotation marks omitted)).

40 See, e.g., Daniel A. Farber, The Rule of Law and The Law of Precedents, 90 MINN. L. REV. 1173, 1187 (2006)(asserting that stare decisis “is inherently subjective, and few judges, including Supreme Court Justices, can resist the natural temptation to manipulate it”); Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove Precedential Effect of Roe and Casey?, 109 YALE. L.J. 1535, 1598 (2000)(“The Supreme Court’s practice today is plainly one of selective stare decisis in the first place. Precedent is followed, except when it isn’t.”).

41 Hilton v. South Carolina Public Railways Comm’n, 502 U.S. 197, 202 (1991). See also Randall v. Sorrell, 548 U.S. 230, 243 (2006)(citing numerous cases)

42 See infra notes __-__ and accompanying text.43 The famous Kent’s Commentaries in 1832 even traced the notion of precedent to judicial

practice in the reign of Edward III in the fourteenth century. See III James Kent, Commentaries on American Law 476-477 (2nd ed. 1832).

11

pronouncements on the subject,44 legal scholars have had ample source material for an

examination of the foundations of stare decisis.45 A brief review will thus suffice here.

Nonetheless, a careful appreciation of the values that animate stare decisis is essential for our

subsequent analysis of the proper role of the doctrine in the field of foreign affairs.

The Supreme Court itself long ago settled on a customary formulation for the foundation

of stare decisis. The doctrine, we are told, “promotes the evenhanded, predictable, and

consistent development of legal principles.”46 Adherence to precedent likewise “fosters reliance

on judicial decisions, and contributes to the actual and perceived integrity of the judicial

process.”47 When carefully considered, these broad values distill around three essential, but

nonetheless interrelated, categories: stability, predictability, and legitimacy.48

The most immediate value of stare decisis is the enhancement of stability across time and

similar circumstance.49 At its most elemental, it serves the impulse that, all things equal, a legal

44 For an historical review of American judicial practice see Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 VAND. L. REV. 647, 652-655 (1999).

45 See, e.g., Lee, supra note Error: Reference source not found, at 652-655; Daniel A. Farber, The Rule of Law and The Law of Precedents, 90 Minn. L. Rev. 1173, __-__ (2006); Stokes, supra note Error: Reference source not found, at __-__; Deborah Hellman, The Importance of Appearing Principled, 37 ARIZ. L. REV. 1107 1109-1121 (1995); Padden, supra note Error: Reference source not found, at __-__; Charles J. Cooper, Stare Decisis: Precedent and Principle in Constitutional Adjudication, 73 CORNELL L. REV. 401, __-__ (1988). CITATIONS

46 Randall v. Sorrell, 548 U.S. 230, 243 (2006)(quoting United States v. International Business Machines Corp., 517 U.S. 843, 856 (1996)(quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)).

47 Randall, 548 U.S. at 243 (quoting United States v. International Business Machines Corp., 517 U.S. 843, 856 (1996) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)). See also Hilton v. South Carolina Public Railways Comm’n, 502 U.S. 197, 202 (1991)(“Adherence to precedent promotes stability, predictability, and respect for judicial authority”); Vasquez v. Hillery, 474 U.S. 254, 265-266 (1986)(same).

48 For similar recognition of this taxonomy see Hellman, supra noteError: Reference source not found, at 1109-111; Lee, supra note Error: Reference source not found, at 652-655.

49 See, e.g., CBOCS West, Inc. v. Humphries, __-__, 128 S. Ct. 1951, 1961 (2008)(observing that “legal stability” is both the goal of “principles of stare decisis” and the foundation of the rule of law); Thomas v. Washington Gas Light Co., 448 U.S. 261, 272 (1980)(observing that stare decisis “serves the broader societal interests in evenhanded, consistent, and predictable application of legal rules”).

12

system is best advised to resolve matters firmly and finally than to search for normatively more

appealing solutions from case to case. In the same vein, adherence to precedent fosters the

consistent, orderly, and efficient administration of justice by discouraging successive relitigation

of issues once authoritatively resolved.50

The value of stability in the law functions in tandem with predictability. Adherence to

established precedent establishes a framework for efficient public and private planning.51 The

resulting reliance interests of those who have arranged their affairs around on established

precedent in turn make out a compelling claim for subsequent legal protection.52 particularly in

property and commercial matters.53 Not surprisingly, this is particularly true for principles

reaffirmed by “iteration and reiteration over a long period of time.”54

Finally, stare decisis serves to sustain the public’s trust in a principled, law-bound

judiciary. As the Supreme Court observed in perhaps its most sensitive of recent decisions, its

50 The standard, almost obligatory, quotation for this proposition comes from Justice Cardozo. See Benjamin N. Cardozo, THE NATURE OF THE JUDICIAL PROCESS 149 (1921)(“The labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case[.]”). See also Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403-404 (1970)(noting that stare decisis advances the interest of “fair and expeditious adjudication” because “the courts could not provide expeditious resolution of disputes if every rule were fair game for de novo reconsideration in every case”).

51 See Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403 (1970)(citing as among the “[v]ery weighty considerations” at the foundation of stare decisis “the desirability that the law furnish a clear guide for the conduct of individuals, to enable them to plan their affairs with assurance against untoward surprise”). See also Michael P. Van Alstine, The Costs of Legal Change, 49 UCLA L. REV. 789, 812-815 (2002)(observing that the legal certainly enhanced by adherence to precedent creates a “framework for less costly, more accurate, and thus more effective planning for future activity”); Easterbrook, supra note , at 430 (advancing a similar argument).

52 The cases in which the Supreme Court has emphasized this point are legion. See, e.g., Leegin Creative Leather Products, Inc. v. PSKS, Inc., 577 U.S. 877, 906 (2007)(“To be sure, reliance on a judicial opinion is a significant reason to adhere to it[.]”); Payne v. Tennessee, 501 U.S. 808, 828 (1991); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854-855 (1992)(same).

53 Id., at 854 (observing that “classic case for weighing reliance heavily in favor of following the earlier rule occurs in the commercial context”). See also Payne v. Tennessee, 501 U.S. 808, 828 (1991)(declaring that stare decisis is at its “acme” in such cases).

54 Randall v. Sorrell, 548 U.S. 230, 244 (2006).

13

legitimacy “depends on making legally principled decisions under circumstances in which their

principled character is sufficiently plausible to be accepted by the Nation.”55 In this light,

adherence to precedent reinforces the perception that in our constitutional system federal courts

fundamentally are not lawmakers; their role is, rather, to find and apply objective rules of law

created by the political branches. In the words of Thurgood Marshall two decades ago, stare

decisis “permits society to presume that bedrock principles are founded in the law rather than in

the proclivities of individuals.”56

C. The Stare Decisis “Anti-Values”: The Justifications for Reexamining Precedent

Under the combined weight of these considerations, the doctrine of stare decisis

ultimately functions as a strong presumption against revisiting precedent. The Supreme Court

has variously described this presumption, but the basic thrust has been the same: Stare decisis

imposes a “severe burden” on those dissatisfied with established case law.57 Disavowal of

precedent thus is “exceptional” and requires, as the Court most recently observed, “the most

convincing of reasons.”58

Stare decisis nonetheless is a doctrine of prudence and pragmatism. Even supreme courts

are fallible. Moreover, of their nature societies, polities, and even legal structures continually

55 Planned Parenthood v. Casey, 505 U.S. 833, 865 (1991).56 Vasquez v. Hillery, 474 U.S. 254, 265 (1986). See also Payne v. Tennessee, 501 U.S. 808, 827

(1991)(declaring that in addition to predictability and reliance considerations, the doctrine of stare decisis “contributes to the actual and perceived integrity of the judicial process”). For a broader analysis of this factor see Hellman, supra note Error: Reference source not found, at 1112 (sketching a “prudential conception of stare decisis” which highlights “the importance of maintaining the public’s faith in the Court as a principle-guided institution”).

57 Thomas v. Washington Gas Light Co., 448 U.S. 261, 272 (1980)(“The doctrine of stare decisis imposes a severe burden on the litigant who asks us to disavow one of our precedents.”).

58 Citizens United v. Federal Election Comm’n, __ U.S. __, 130 S.Ct. 876, 911-912 (2010). See also, e.g., Randall v. Sorrell, 548 U.S. 230, 24 (2006)(“Departure from precedent is exceptional, and requires ‘special justification.’”)(quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)); Hilton v. South Carolina Public Railways Comm’n, 502 U.S. 197, 202 (1991)(“[W]e will not depart from the doctrine of stare decisis without some compelling justification.”).

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adapt and evolve. As a result, an entirely sensible decision in one age may make little or no

sense in the next. To avoid both ossification and unthinking adherence to past mistakes,

therefore, any rational doctrine of precedent must leave some room for change. To this end, the

Supreme Court has recognized what might be seen as a set of stare decisis “anti-values,” which

balance the system by permitting review and correction of the conspicuous judicial misfires of

the past.

The grounds for overruling precedent are easily stated, though their application of

necessity is highly situation-specific. A standard consideration is whether a precedent has

proven to be “unworkable” in actual practice.59 On a similar note, the Court has observed that

reconsideration is appropriate where the earlier decision was poorly reasoned in the first place

and thus has been “the subject of continuing controversy and confusion.”60 But when carefully

considered, each of these related ideas is simply another way of saying that a particular precedent

never succeeded in establishing the stability and predictability that would justify stare decisis in

the first place.

Of greater significance has been the force of subsequent developments on the foundation

of an earlier decision. Reevaluation of a precedent is first justified when “facts have so changed,

or come to be seen so differently, as to have robbed the old rule of significant application or

59 See, e.g., Citizens United v. Federal Election Com’n, __ U.S. __, 130 S.Ct. 876, 912 (2010)(“Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned.”)(quoting Montejo v. Louisiana, 556 U.S. __, 129 S.Ct. 2079, 2088-2089 (2009); Planned Parenthood v. Casey, 505 U.S. 833 (1991)(stating that overruling is justified when a decision “has proven to be intolerable simply in defying practical workability”).

60 Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 47 (1977). See also Pearson v. Callahan, __ U.S. __, 129 S.Ct. 808, 817 (2009)(relying on “a considerable body of new experience” to overrule a precedent); Randall v. Sorrell, 548 U.S. 230, 244 (2006)(refusing to overrule a precedent because “[s]ubsequent case law has not made [it] a legal anomaly or otherwise undermined its basic legal principles”).

15

justification.”61 Thus, for example, a recent opinion relied on advances in modern scholarly and

administrative perspectives to overrule a long-standing rule of anti-trust law that established the

per se invalidity of vertical price restraints.62

But “of most relevance” has been the effect of intervening developments in the law

itself.63 The Supreme Court has thus declared that “the primary reason” for overruling precedent

is where “either the growth of judicial doctrine or further action taken by Congress … ha[s]

removed or weakened the conceptual underpinnings from [a] prior decision[.]”64 Thus, for

example, in the 2007 case of Leegin Creative Leather Products, Inc. v. PSKS, Inc. the Court

chronicled how nearly one hundred years of case law developments justified overruling a

precedent.65

D. Institutional and Instrumental Considerations

An additional fixture of stare decisis jurisprudence is perhaps the most important for

understanding the doctrine in application. The Supreme Court has long held that stare decisis is

most potent in statutory cases and weakest when the Court interprets the Constitution. At is most

elemental, this distinction is founded on the availability—both formally and practically—of

61 Planned Parenthood v. Casey, 505 U.S. 833, 855 (1991)(citing Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 412 (1932)(Brandeis, J., dissenting)). See also Randall v. Sorrell, 548 U.S. 230, 244 (2006)(declining to overrule a precedent because of the absence of a showing “that circumstances have changed so radically as to undermine [its] critical factual assumptions”).

62 See Leegin Creative Leather Products, Inc. v. PSKS, Inc., 577 U.S. 877, 899-901 (2007) (overruling Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911)).

63 Leegin Creative Leather Products, Inc. v. PSKS, Inc., 577 U.S. 877, 900 (2007)(“Of most relevance, ‘we have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings.’”)(quoting Dickerson v. United States, 530 U.S. 428, 443 (2000)).

64 Patterson v. McLean Credit Union, 491 U.S. 164, 173-174 (1989). See also Planned Parenthood v. Casey, 505 U.S. 833, 855 (1991)(observing that review of a precedent is justified “whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine”); United States v. Gaudin, 515 U.S. 506, 521 (1995)(declaring that overruling of a precedent may be justified where “subsequent decisions of this Court have eroded its “underpinnings”).

65 See Leegin Creative Leather Products, Inc. v. PSKS, Inc., 577 U.S. 877 (2007) (overruling Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911)).

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alternative constitutional vehicles for error correction. Stated simply, where a court interprets a

congressional statute, the legislative branch is available to correct, update, or otherwise revise the

judicial determination.66 Thus, as the Supreme Court recently reiterated with a standard

formulation, “considerations of stare decisis weigh heavily in the area of statutory construction,

where Congress is free to change this Court’s interpretation of its legislation.”67 So strong is this

principle that Justice Scalia not long ago referred to it as an “almost categorical rule of stare

decisis in statutory cases.”68

The institutional field is quite different in constitutional cases. Where the Supreme Court

grounds a decision in the Constitution, the only vehicles for revision or adaption are the Court

itself and the amendment procedure of Article V.69 “[C]orrection through legislative action,” as

Justice Brandeis famously observed, “is practically impossible.”70 History amply proves the

66 Some leading scholars have criticized this established Supreme Court jurisprudence. See, e.g., William N. Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361, 1398-1409 (1988)(arguing against a heightened stare decisis for statutory cases); T. Alexander Aleinikoff, Updating Statutory Interpretation, 87 MICH. L. REV. 20, 40-45 (1988)(advancing a similar critique). At the other end of the spectrum, some critics have questioned the propriety of weakened stare decisis in constitutional cases. See, e.g., Frank H. Easterbrook, Stability and Reliability in Judicial Decisions, 73 CORNELL L. REV. 422, 429-431 (1988); Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723, 742 (1988).

67 Pearson v. Callahan, __ U.S. __, 129 S.Ct. 808, 816-817 (2009)(quoting Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977)). See also John R. Sand & Gravel Co. v. U.S., __ U.S. __, 128 S. Ct. 750, 757 (2008)(“[S]tare decisis in respect to statutory interpretation has ‘special force,’ for ‘Congress remains free to alter what we have done.’”)(quoting Patterson v. McLean Credit Union, 491 U.S. 164, 172-173 (1989). As well, a judicial interpretation of a dated, and especially an outdated, statute may spur congressional action. See William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331 (1991)(reviewing congressional overrides from 1967 through 1990).

68 Rasul v. Bush, 542 U.S. 466, 493 (2004)(Scalia, J., dissenting). See also Eskridge, Statutory Precedents, supra note Error: Reference source not found, at 1364-1369 (reviewing the Supreme Court’s “super-strong presumption against overruling statutory precedents”).

69 See U.S. CONST., art. V.70 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-07 (1932)(Brandeis, J., dissenting). See

also Payne v. Tennessee, 501 U.S. 808, 828 (1991)(quoting this observation with approval); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 63 (1996).

17

point.71 Because of this, stare decisis in constitutional cases “is at its weakest.”72 On this basis,

the Supreme Court has declared that constitutional precedents in particular in foreign affairs

“afford little precedential value for subsequent cases.”73 To be sure, here as well the requirement

of special justification remains.74 Nonetheless, it is not uncommon for the Supreme Court to

revisit even recent constitutional precedents, as its controversial decision only last year in

Citizens United v. Federal Election Commission amply demonstrates.75

The foundations for differential stare decisis run deeper, however, than the availability of

expedient sources for error correction. The distinction instead finds essential color and texture in

institutional considerations about the proper relationship of the judiciary with its co-equal

branches of government. In specific, the differential force of constitutional and statutory

precedents arises from a respect for the respective constitutional allocations of authority to—and,

presumably, the derivative institutional competence of—the judicial branch and Congress. It is

thus animated not only by which institution is, but also by which properly should be, the

principal source for continued development of a given field of law.

When a court interprets a statute, it operates against the backdrop of the legislative

competence of Congress acting within constitutionally delegated lawmaking powers. The

71 What Justice Brandeis observed in 1932 remains true today: “In only two instances—the Eleventh and the Sixteenth Amendments—has the process of constitutional amendment been successfully resorted to, to nullify decisions of this Court.” Burnet v. Coronado Oil & Gas Co. 285 U.S. 393, 410 n.5 (1932)(Brandeis, J., dissenting).

72 Agostini v. Felton, 521 U.S. 203, 235 (1997)(declaring that stare decisis “is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions”). See also Payne v. Tennessee, 501 U.S. 808, 828 (1991)(same).

73 See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 661 (1981).74 Harris v. United States, 536 U.S. 545, 556-557 (2002)(plurality opinion)(“Even in

constitutional cases, in which stare decisis concerns are less pronounced, we will not overrule a precedent absent a ‘special justification.’”)(quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)).

75 Citizens United v. Federal Election Com’n, __ U.S. __, 130 S.Ct. 876, 911-912 (2010) (overruling McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003), and Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)).

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special force of stare decisis in such cases recognizes the primacy of Congress in Article I

lawmaking by deferring to the original lawmakers for subsequent correction, adjustment, or

modernization of their own legislative products. As the Supreme Court thus observed in Neal v.

United States, “[o]ur reluctance to overturn [statutory] precedents derives in part from

institutional concerns about the relationship of the Judiciary to Congress. Congress, not this

Court, has the responsibility for revising its statutes.”76 Indeed, concerns about intrusion into the

policymaking authority of Congress have led some jurists (most notably Justice Black77) and

scholars78 to advocate a near absolute rule against revisiting statutory precedents.

For constitutional matters, in contrast, the Supreme Court “bears the ultimate obligation

for the development of the law as institutions develop.”79 From a tradition founded on no less

than Marbury v. Madison,80 the Court has assigned itself the ultimate authority on the meaning of

the Constitution. The judicial branch, therefore, is the institution with the independence,

authority, and competence to review—and as appropriate correct and update—prior

constitutional precedents.

The role of these institutional considerations for federal common law is unclear. In this

vacuum, some scholars assume that common law decisions enjoy a “normal” level of

76 516 U.S. 284, 295-96 (1996). See also Patterson v. McLean Credit Union, 491 U.S. 164, 172-173 (1989) (Kennedy, J.)(“Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated[.]”).

77 See Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 257-258 (1970)(Black, J., dissenting)(arguing that because of “the primary responsibility of the legislature in the making of laws,” reexamining a precedent once “is no different in effect from a judicial alteration of language that Congress itself placed in the statute”). Cf. Rasul v. Bush, 542 U.S. 466, 493 (2004)(Scalia, J., dissenting) (suggesting that the Court follows an “almost categorical rule of stare decisis in statutory cases”).

78 See Lawrence C. Marshall, “Let Congress Do It”: The Case for an Absolute Rule of Statutory Stare Decisis, 88 MICH. L. REV. 177, 208-215 (1989).

79 Monroe v. Pape, 365 U.S. 167, 221 (1961).80 5 U.S. (1 Cranch) 137, 177 (1803).

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precedential force.81 But others have opined that decisions in this field are not different in kind

from statutory cases,82 with the result that special force of stare decisis should apply with equally

to common law precedents.83 This matter will of course assume significance below in our

analysis of judicial lawmaking in foreign affairs. It will suffice at this point to observe that the

Supreme Court seemingly has endorsed a more relaxed version of the doctrine where courts

develop “common law statutes” based on an implied delegation of authority by Congress.84

E. The Unexamined Boundaries of Stare Decisis

Inherent in the doctrine of binding precedent, finally, is a principle that for courts and

scholars alike apparently has seemed too elemental to require elaboration. It nonetheless is

essential for a full appreciation of the analysis below: Stare decisis is inseparably bound to, and

by, the concept of jurisdiction. I mean for this term its elemental sense of the realm of authority

within which a court has the power to declare the law. Alexander Hamilton once aptly parsed

the concept in this essential way. “[J]urisdiction,” he observed, “is composed of JUS and

DICTIO, juris dictio, or a speaking and pronouncing of the law.”85

Courts of law derive their power to issue authoritative rulings from a particular polity.

They are, in the first instance, legally constituted by such a polity.86 At a more immediate and

81 See Eskridge, Overruling Precedents, supra note __, at 1366 (“Presumably, common law precedents would continue to enjoy the normal stare decisis presumption”); Earl Maltz, The Nature of Precedent, 66 N.C. L. Rev. 367, 388 (1988)(“Common-law precedents provide the benchmark against which other case law is measured.”).

82 See Peter Westen & Jeffrey S. Lehman, Is There Life for Erie After the Death of Diversity, 78 MICH. L. REV. 311, 332 (1980)(“The difference between ‘common law’ and ‘statutory interpretation’ is a difference in emphasis rather than a difference in kind.”).

83 See Lawrence, supra note __, at 222 (arguing that the separation-of-power concerns that support “an absolute rule of stare decisis in statutory cases” apply as well to federal common law precedents).

84 See infra notes __-__ and accompanying text.85 Alexander Hamilton, The Federalist No. 81, at 531 (Modern Library ed., 1938).86 See U.S. Const., art. III, § 1 (establishing “one Supreme Court” and empowering Congress to

establish inferior courts of the United States).

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concrete level, this elemental source of power also defines whether a court has adjudicative

authority87—in American law idioms, subject matter and personal jurisdiction—over any

particular dispute. When so constituted and within their legal mandate, courts then exercise a

distinct function on behalf of their state: in Montesquieu’s famous allocation, the “power of

judging” over individual controversies.88 It is thus not by accident that our Constitution vests

“the judicial Power” of the United States in the Supreme Court (and such inferior courts as

Congress may establish from time to time).89

Embedded within this notion of a judicial power is the authority to resolve disputed

issues of law in a binding and (for the common law mind at least90) a systemically final manner.

This authority exists, however, only within the framework of the legal system from which the

declaring court derives its mandate. Although tautological, there is insight in the observation

that a court has the power to create precedent only within the legal system for which it has the

power to speak with final authority. The Supreme Court of Pennsylvania, for example, can no

more make binding pronouncements for New York courts on the law of New York than the

legislature of Pennsylvania could validly empower it to do so in the first place.91

87 In international law, this concept often is captured by the term “jurisdiction to adjudicate.” See Restatement of Foreign Relations, supra note __, § 401(b)(defining “jurisdiction to adjudicate” as the power to “subject person or things to the process of its courts or administrative tribunals …”).

88Charles de Secondat, baron de Montesquieu, The Spirit of the Laws 157 (Anne M. Cohler et al. eds. & trans., 1989) (1748)(recognizing the “power of judging” that is distinct from legislative power and executive power).

89 U.S. Const., art. III, § 1 (emphasis supplied).90 As noted below, the formal concept of stare decisis does not apply in civil law systems. See

infra notes __-__ and accompanying text.91 Pennsylvania courts may of course resolve disputes that involve the application of New York

law. But any interpretation of New York law, although final in the individual dispute, would not be binding on New York courts in the future. This is true notwithstanding the federal full faith and credit clause (see U.S. CONST., art. IV, § 1), which was designed to mitigate the coordination problems associated with a federation of numerous sovereign states. See, e.g., University of Tennessee v. Elliott, 478 U.S. 788, 798-799 (1986); Thomas v. Washington Gas Light Co., 448 U.S. 261, 271-272 (1980); Nevada v. Hall, 440 U.S. 410, 424-425 (1979).

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In the federal realm, the Constitution itself recognizes this principle with a simple, but

subtly powerful, two-letter preposition: It vests in the federal Supreme Court “the judicial Power

of the United States” (not, for example, “in” the United States).92 It is for this reason that even

the Supreme Court lacks the authority to create precedent on the law of a state that is binding on

the internal organs of that state.93

This basic point about the jurisdictional premise of precedent has not figured prominently

in modern analyses of stare decisis. A careful focus on this embedded limitation nonetheless

carries insights into the values that animate the doctrine. We may properly speak of stability,

predictability, and legitimacy through precedent precisely because a superior court—and

ultimately a court of last instance—is able to speak with final authority about the law within its

defined jurisdiction. It is this final authority, in other words, that may create and reinforce the

value of “calm” at the foundation of stare decisis.94

This in turn requires fidelity in both the vertical and horizontal dimensions.95 Where a

polity constitutes inferior courts within the same jurisdiction,96 a functional concept of stare

decisis requires that they be tied into a hierarchically integrated system with opportunities for

oversight by superior courts. The great bulk of judging is done by lower courts. Vertical stare

decisis thus especially serves the core values of system stability and predictability. For by this

92 U.S. Const., art. III, § 1 (emphasis supplied).93 See International Longshoremen’s Ass’n v. Davis, 476 U.S. 380, 387 (1986)(“[W]e have no

authority to review state determinations of purely state law[.]”); West v. American Tel. & Tel. Co., 311 U.S. 223, 236 (1940)(same).

94 See supra note Error: Reference source not found (translating the basic Latin maxim).95 See Richard W. Murphy, Separation of Powers and the Horizontal Force of Precedent, 78

NOTRE DAME L. REV. 1075, 1085-1086 (2003)(examining these dimensions of stare decisis).96 The term “jurisdiction” here does not necessarily imply a bounded geographical area. A

particular polity may choose to have more than one “supreme” court with jurisdiction delineated by subject matter. An example is the Texas Court of Criminal Appeals. See Tex. Const. art. V, §§ 5, 6.

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means, final legal determinations of superior courts take practical effect through mandatory

adherence by inferior courts throughout the system.

Horizontal stare decisis, in contrast, principally serves the value of judicial legitimacy. A

requirement that even a supreme court identify compelling grounds before reexamining its own

precedent reinforces the appearance of a principled, law-bound judiciary.97 Presumably,

moreover, the most reliable judicial expertise on the law of a particular jurisdiction, as well as on

the influence of subsequent developments, is housed in its own highest court.

The jurisdictional foundations of stare decisis, finally, are bound to the power of

precedent to control change. In a vertically integrated system secured by horizontal fidelity to

precedent, stability flows from the premise that all forces of legal change are endogenous to the

system.98 Rigorously followed, stare decisis prevents relitigation of precedents and thus the

corrosive effects of judicial reexamination within that system.99 Once a supreme judicial

authority has established a precedent within its jurisdictional mandate, therefore, the only source

for future legal change—save permissible, prospective overrides by the legislature or other law-

making institution—should be that one court.100 It is for this reason that intervening

97 See supra notes __-__ and accompanying text.98 A notable exception is ruling by administrative agencies within authority delegated by

Congress. I explore this point in more detail below. See infra notes __-__ and accompanying text.99 This of course highlights the significance of scholarly analysis; but because of stare decisis and

other cultural and traditional forces, courts in the United States generally have not accorded substantial influence to scholarly arguments about particular precedents.

100 The one noteworthy exception is where Congress has delegated interpretive authority to an administrative agency for a particular statutory scheme. For more on this point see infra notes __-__ and accompanying text.

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developments in the law (the stare decisis anti-value “of most relevance”101) commonly can

occur only through erosion at the edges of a precedent over a substantial period of time.102

All of this makes sense within the archetype of the modern nation-state with an

independent and hierarchically integrated judicial branch. For federal law of a purely domestic

origin, moreover, the Supreme Court will have the power to speak with finality and thus

effectively control the forces of change. As the analysis below will explore, however, matters

become considerably more opaque and complex when we reflexively extend the jurisdictional

premises of stare decisis to a multi-polar legal order. Such is the case with Article III

international law. This realm is marked by a goal of system-wide uniformity, but a reality of

multi-polar judicial authority that entirely lacks hierarchical integration.

To appreciate the implications of this fact, we must first return to the Constitution’s core

allocation of powers in foreign affairs. This foundation will permit a deeper exploration of the

special responsibilities of the judicial branch when international law rights and obligations fall

within its domestic power to declare the law (its “juris-dictio”).

II. SEPARATION OF POWERS AND FOREIGN AFFAIRS

The boundaries of the “judicial Power” of the federal courts are nowhere more elusive

and elastic than in the field of foreign affairs law. Even as a general proposition, the

Constitution does not require a “hermetic division among the Branches,”103 nor that “the three

branches of Government ‘operate with absolute independence.’”104 In the field of foreign affairs,

101 See supra notes Error: Reference source not found-Error: Reference source not found and accompanying text.

102 The opinion in which the “of most relevance” statement appears, Leegin Creative Leather Products, Inc. v. PSKS, Inc., thus cited over 100 years of erosion to justify overruling a precedent. 551 U.S. 877, 900 (2007).

103 Mistretta v. United States, 488 U.S. 361, 381 (1989).104 Morrison v. Olson, 487 U.S. 654, 693-694 (1988)(quoting United States v. Nixon, 418 U.S.

683, 707 (1974)).

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the Supreme Court nonetheless has sanctioned a degree of integration of the “dispersed

powers”105 of legislative, executive, and judicial that finds few parallels elsewhere in

constitutional governance. Our analysis below thus will profit from a concise review of the

Constitution’s general distribution of foreign affairs powers among the three branches of the

national government.

A. The Constitution’s Core Allocations of Authority in Foreign Affairs

The constitutional position of Congress as the preeminent domestic lawmaking institution

extends as well to foreign affairs. In addition to a general grant of authority over foreign

commerce,106 it has the specific powers “[t]o define and punish … Offences against the Law of

Nations”107 and to declare and regulate private conduct during war.108 Moreover, the Necessary

and Proper Clause empowers Congress has to carry into execution any of the federal powers

elsewhere vested by the Constitution.109 This includes, significantly, the exclusive authority to

transform non-self-executing treaties into domestic law,110 even beyond the otherwise applicable

limits on its Article I powers.111 The combined effect of all of these grants is that Congress has a

virtually unlimited field to regulate the domestic law incidents of foreign affairs, including

through the incorporation of international law norms into the domestic sphere.112

105 See Mistretta v. United States, 488 U.S. 361, 381 (1989).106 U.S. Const., art. I, § 8, cl. 3.107 U.S. Const. art. I, § 8, cl. 10.108 See U.S. Const., art. I, § 8, cl. 11 (granting the power “[t]o declare War, grant Letters of

Marque and Reprisal, and make Rules concerning Captures on Land and Water”).109 U.S. Const., art. I, § 8, cl. 18.110 See Medellin v. Texas, 552 U.S. 491, 525-526 (2008). For more on the distinction between

self-executing and non-self-executing treaties, see infra notes __-__ and accompanying text.111 See Missouri v. Holland, 252 U.S. 416, 432-434 (1920).112 See Henkin, supra note __, at 66 (concluding, after reviewing Supreme Court precedent on the

foreign commerce power, that it “might be sufficient to support virtually any legislation that relates to foreign commerce, i.e., to foreign relations”).

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The challenge for the work of the judiciary matters arises from the special constitutional

delegations to the President in the field. Article III, Section 1, generally vests “[t]he executive

power” in the President, a term and clause that themselves have generated substantial scholarly

debate.113 More specifically, the Constitution designates the President as Commander-in-Chief of

the armed forces114 and confers on him or her broad authority over ambassadorial relations.115

These express delegations have led to a recognition of certain independent powers of the

President in foreign affairs116 as well as the general authority to manage our routine external legal

relations with foreign states.117 With these independent powers as a backdrop, the Supreme

Court also has cleared nearly limitless constitutional space for congressional delegation of

lawmaking authority to the executive branch in the field.118

Of more significance for immediate purposes is the special role of the President in the

creation of domestic law founded on sovereign commitments under international law. Article II,

Section 3, empowers the President to “make Treaties” provided two-thirds of the Senators

113 See, e.g., Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 MICH. L. REV. 545 (2004); Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231 (2001).

114 U.S. CONST., art. II, § 2 (designating the President the Commander-in-Chief of the nation’s armed forces).

115 U.S. CONST., art. II, § 2, cl. 2 (granting the President the powewr, with the advice and consent of the Senate, to “appoint Ambassadors ... and Consuls”); id., § 3 (conferring authority “to receive Ambassadors and other public Ministers”).

116 Prominent among these are the powers to recognize foreign governments, see, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964) and Baker v. Carr, 369 U.S. 186, 212 (1962), and to direct the tactical aspects of external military conflicts, see Fleming v. Page, 50 [9 How.] U.S. 603, __ (1850) and The Prize Cases, __ U.S. __ [2 Black] 635, 668 (1863).

117 For more on this point see infra notes __-__ and accompanying text. 118 See Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 684

(1980)(“[I]n the area of foreign affairs, Congress ‘must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.’”)(quoting United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936)).

26

present approve.119 Moreover, and in contrast to the “limited and qualified power” to veto Article

I legislation,120 the President retains a unilateral authority over the formal ratification of a treaty

(and thus its very legal existence for the United States) even after Senate “advice and consent.”121

The Supreme Court also has endorsed a unilateral executive power to conclude binding

international law agreements, in some cases with domestic law effects (about which more

below122), without complying with the constitutionally prescribed procedures for the approval of

treaties.123 Finally, the position as “constitutional representative” in foreign affairs124 affords the

President substantial control over acceptance of norms of customary international law on behalf

of the United States.

The legal norms created by the political branches that regulate foreign affairs, like any

other form of federal law, also may fall within the “judicial Power” of the federal courts. In

parallel with corresponding clauses for the legislative and executive powers, Article III, Section

1, “vests” the judicial Power of the United States “in one supreme Court” (and such inferior

courts as Congress may establish). With no textual differentiation, Section 2 then defines this

power to include “all cases” arising under “this Constitution, the laws of the United States, and

treaties made, or which shall be made, under their authority.”125 The inclusion of international

treaties in this fundamental list has obvious significance for our analysis below. But Article III

119 U.S. CONST., art. II, § 2, cl. 2 (granting the President the “power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur”).

120 I.N.S. v. Chadha, 462 U.S. 919, 947 (1983).121 CITATIONS. 122 See infra notes __-__ and accompanying text.123 See American Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003)(recognizing such a power).

See also Dames & Moore v. Regan, 453 U.S. 654, 679, 682-683 (1981); United States v. Belmont, 301 U.S. 324, 330-331 (1937).

124 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).125 U.S. const., art. III, § 2.

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also expressly extends the federal judicial power to cases involving ambassadors and to similar

matters that carry special foreign affairs sensitivities.126

Article III’s description of federal judicial authority draws no distinction between foreign

affairs matters and any other category of cases. The Supremacy Clause of Article VI, with its

almost exact linguistic parallel to the core of Article III’s “judicial Power,” likewise contains no

hint of such a differentiation.127 And even the traditional concerns of federalism whither to near

complete insignificance for the work of the judiciary in the field of foreign affairs.128 Moreover,

and as underscored by their required Article VI oath “to support th[e] Constitution,”129 nothing in

the Constitution requires or permits federal judges to refuse either “to render dispositive

judgments”130 in foreign affairs disputes properly before them nor to resolve disputed issues of

law in the process.131 As the Supreme Court thus observed in a recent opinion with immediate

foreign policy implications (and in the face of a plea by the executive branch for judicial restraint 126 Id. (extending the judicial power to cases affecting “ambassadors, other public ministers and

consuls,” cases of “admiralty and maritime jurisdiction,” and “controversies states or citizens and “foreign states, citizens or subjects”).

127 See U.S. CONST., art. VI, cl. 2 (“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land”).

128 The combined effect of the structural norms and express provisions discussed immediately above is that the Constitution vests in the national government a power to arrogate near exclusive authority over domestic lawmaking in the field of foreign affairs. See, e.g., Zschernig v. Miller, 389 U.S. 429, 436 (1968)(“[F]oreign affairs and international relations [are] matters which the Constitution entrusts solely to the Federal Government[.]”); Fong Yue Ting v. United States, 149 U.S. 698, 711 (1893)(making the same point and declaring that the Constitution “speaks with no uncertain sound upon this subject”). To emphasize the point, the Constitution also expressly prohibits the states—in contrast to the standard model of mostly concurrent lawmaking powers—from entering into any formal foreign affairs obligations on their own. See U.S. Const., art. I, § 10, cl. 1 (providing that “no State shall enter into any Treaty, Alliance, or Confederation”); id. art. I, § 10, cl. 3 (prohibiting the states from concluding “ any Agreement or Compact with a foreign Power” without the consent of Congress).

129 U.S. CONST., art. VI, cl. 3 (providing, inter alia that “all executive and judicial officers … shall be bound by oath or affirmation, to support this Constitution”).

130 See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995)(declaring that “a ‘judicial Power’ is one to render dispositive judgments”).

131 See also Ramsey, TEXT AND FOREIGN AFFAIRS, supra note __, at 323 (making a similar point founded on Article VI’s required oath to support the Constitution).

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for that very reason), “Courts in the United States have the power, and ordinarily the obligation,

to decide cases and controversies properly presented to them.”132

B. Judicial Reticence, Judicial Deference

Nonetheless, judicial opinions at times have reflected a lack of judicial self-esteem in the

field of foreign affairs law. The courts of course have no authority to conduct or oversee the

foreign policy of the United States. Nonetheless, occasional judicial rhetoric has suggested that,

even for actual cases and controversies properly before them, the courts generally lack the

competence to question the judgments of the political branches in foreign affairs. Thus, as the

Supreme Court declared in Regan v. Wald in 1984—to choose just one example of the “sweeping

statements”133 to this effect—, matters relating “to the conduct of foreign relations ... are so

exclusively entrusted to the political branches of government as to be largely immune from

judicial inquiry or interference.”134

Such rhetorical flights have provoked extended and excited scholarly controversies that

continue to this day.135 Baker v. Carr put to rest the extreme notion that every case with foreign

policy implications is beyond judicial cognizance.136 Moreover, no majority opinion of the

Supreme Court has actually applied the formal doctrine to justify abstention in a foreign affairs

132 W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corp., 493 U.S. 400, 409 (1990).133 See Baker v. Carr, 369 U.S. 186, 211 (1962).134 468 U.S. 222, 242 (1984)(quoting Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952)). See

Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918)(“The conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative—‘the political’—departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.”)

135 For comprehensive treatments of the subject see Harold Hongju Koh, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR (1990); THE CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY (David G. Adler and Larry N. George, eds., 1996); John Yoo, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11 (2005).

136 369 U.S. at 211. The Court reiterated the point two years later in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964).

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case,137 although of course it has recognized specific constitutional powers distinctly delegated to

other branches.138 And although the number of lower court opinions that have done so is not

insignificant, all of these have addressed specific disputes over the constitutional allocation of

powers in the field.139

The engagements with the political question doctrine nonetheless are reflective of a

primitive judicial sense that something is qualitatively different when courts are called on to

apply foreign affairs law. Justice Sutherland’s description of foreign affairs in United States v.

Curtiss-Wright Export Corp. (on what was otherwise a judicial frolic and detour) as a “vast

external realm, with … important, complicated, delicate and manifold problems” continues to

resonate in modern opinions.140

Baker v. Carr itself sketched reasons for a special judicial modesty in foreign affairs.

Beyond formal constitutional commitments to another branch, the opinion there observed that

the resolution of issues in the field “frequently turn on standards that defy judicial application” or 137 What Louis Henkin said in 1996 is equally true today: “There is … no Supreme Court

precedent for extraordinary abstention from judicial review in foreign affairs cases.” Louis Henkin, FOREIGN AFFAIRS AND THE US CONSTITUTION 144 (2nd ed. 1996). But cf. Goldwater v. Carter, 444 U.S. 996, 1002-1004 (1979)(Rehnquist, J., concurring)(arguing in an opinion joined by three other justices that the issue of termination of a treaty by the President is “nonjusticiable because it involves the authority of the President in the conduct of our country’s foreign relations and the extent to which the Senate or the Congress is authorized to negate the action of the President”).

138 See, e.g., Republic of Mexico v. Hoffman, 324 U.S. 30, 35 (1945)(conceding the power of the President to recognize foreign governments); Ex parte Republic of Peru, 318 U.S. 578, 589 (1943)(holding that a determination by the State Department concerning foreign sovereign immunity “must be accepted by the courts as a conclusive”); U.S. v. Palmer, 16 U.S. [3 Wheat.] 610, 634 (1818)(observing with the executive’s determination of legal status of a foreign conflict under international law “transcend[s] the limits prescribed to the judicial department”). For a comprehensive analysis of this issue from a textual perspective see Ramsey, TEXT AND FOREIGN AFFAIRS, supra note __, at 155-173; Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231, 264-65 (2001).

139 See, e.g., Made in the USA Foundation v. U.S., 242 F.3d 1300 (11th Cir. 2001)(addressing the approval of treaties by an act of Congress); Dole v. Carter, 569 F.2d 1109 (10th Cir. 1977)(addressing the effect of an executive agreement without Senate approval). A number of courts have dismissed as political questions challenges to the President’s right to initiate hostilities. See, e.g., DaCosta v. Laird, 471 U.S. 1146 (2nd Cir. 1973); Lowry v. Reagan, 676 F.Supp. 333 (D.D.C. 1987).

140 299 U.S. 304, 320 (1936).

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“uniquely demand single-voiced statement of the Government’s views.”141 The Court elsewhere

has cited the limitations on its access to reliable information as grounds for deference to the

judgments of the political branches.142 More generally, its opinions have emphasized the

inability of courts to gauge the precise implications of their decisions for our relations with

foreign states.143

For reasons institutional and prudential, the primary beneficiary of these sentiments has

been the executive branch. Time and again federal court opinions have expressed respect for the

President’s independent authority to act in the field and for his “vast share of responsibility”144

for our nation’s relations with foreign states.145 Derivative of this has been a judicial recognition,

at least in a comparative sense, of the executive branch’s superior expertise and access to reliable

information in foreign affairs matters.146 As a practical matter, moreover, the President’s ability

141 Baker v. Carr, 369 U.S. 186, 211-212 (1962). See also id., at 217 (citing the influence of “an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question”).

142 This is true, as the Court found only last term, even in the measurement of individual rights. See Holder v. Humanitarian Law Project, __ U.S. __, 130 S.Ct. 2705, 2727 (2010) (“[W]hen it comes to collecting evidence and drawing factual inferences in [national security and foreign affairs], ‘the lack of competence on the part of the courts is marked’ and respect for the Government’s conclusions is appropriate.”)(quoting Rostker v. Goldberg, 453 U.S. 57, 65 (1981)).

143 See supra note Error: Reference source not found and accompanying text (citing Supreme Court observations to this effect). Of course, concerns about offending foreign states have not led the Court to shrink from its judicial responsibilities when it determines that the law is clear, as two recent decisions on treaty law have demonstrated. See Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006); Medellín v. Texas, __ U.S. __, 128 S. Ct. 1346 (2008).

144 American Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003)(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-611 (1952) (Frankfurter, J., concurring)).

145 See id., (declaring that “in foreign affairs the President has a degree of independent authority to act”). See also, e.g., Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 188 (1993)(observing that the President has “unique responsibility” for the conduct of “foreign and military affairs”); Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U.S. 103, 109 (1948) (“The President ... possesses in his own right certain powers conferred by the Constitution on him as Commander-in-Chief and as the Nation’s organ in foreign affairs”).

146 See, e.g., Abbott v. Abbott, __ U.S. __, 130 S.Ct. 1983, 1993 (2010)(following the executive’s interpretation of a treaty with the reasoning that “[t]he Executive is well informed concerning the diplomatic consequences resulting from this Court’s interpretation” of a treaty provions, “including the likely reaction of other contracting states”); Chicago & Southern Air Lines, Inc. v. Waterman Steamship

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to take the lead—to give solemn assurances to foreign states and pursue paths of action founded

on autonomous interpretations of the law—may work to constrain future judicial decision-

making. As we shall see in much more detail below,147 these sentiments also have condensed

into formal doctrines that grant deference to the executive’s views on the very content of the law.

In spite of this, the field of judicial engagement in defining our nation’s formal legal

obligations in foreign affairs, as we shall see in the next section, is considerable and expanding.

A full appreciation of the breadth of this engagement will highlight the significance of

establishing inflexible precedents where the courts unavoidably participate in a form of foreign

affairs lawmaking.

C. The Significant and Expanding Judicial Responsibilities in Foreign Affairs Lawmaking

In this section we refine our thinking to focus on those aspects of foreign affairs law that

raise special concerns for the force of stare decisis. We have noted above that constitutional

decisions on foreign affairs powers are already subject to a weakened form of stare decisis.148

On the other hand, simple domestic statutes whose content is defined entirely by Congress, even

those with foreign affairs effects, will not raise special concerns over leadership and independent

value judgments by the judiciary. To understand this point, we must first identify the special

category of controversies that likewise fall within the Article III “judicial Power” of the federal

courts, but directly or indirectly involve them in the very definition of rights or obligations under

international law.

Corp., 333 U.S. 103, 111 (1948)(emphasizing the President’s superior access to secret information and observing that “[i]t would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive” taken on such information).

147 See infra notes __-__ and accompanying text.148 It is this confined, though of course significant, subset of issues of which Mike Ramsey speaks

with his observation that “[f]oreign affairs law is, at its root, constitutional law.” Michael D. Ramsey, THE CONSTITUTION’S TEXT IN FOREIGN AFFAIRS 1 (2007).

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It is no secret, even for the casual observer of public affairs, that international law and

institutions have played an increasingly prominent role in the modern law of the United States.

Treaty regimes have proliferated; international institutions have grown in both numbers and

range of authority; and reference to international law norms in domestic litigation is now

commonplace. Like foreign policy generally, the mandate of the judicial branch does not extend

to purely sovereign-to-sovereign legal disputes, a point Chief Justice Marshall emphasized early

in our constitutional history.149 But international law now also makes increasing claims to issues

in the domestic space. It is precisely because of this that the circumstances under which the

judiciary may resort to international norms as a rule of decision is among the most contested

issues of modern legal scholarship.150

Although they provide flavor for the sensitivity of the subject, we need not wade into

these controversies here. Our concern is instead the product of judicial action—however

domestic law has empowered the courts to resolve disputes by reference to international law

sources. Our analysis begins, in other words, with international legal norms already validated

through domestic recognition mechanisms (whether the Constitution, laws, or treaties of the

United States).

These norms share five essential characteristics: (a) they come into being through

international lawmaking processes (and thus their substance derives in whole or in part from

international law); (b) they affect legal rights or obligations; (c) they have been validated as

domestic law through domestic recognition mechanisms; (d) they fall within the authority of

149 See Foster v. Neilson, 27 U.S. (2 Pet.) 253, 307 (1829)(“The judiciary is not that department of the government, to which the assertion of its interests against foreign powers is confided; and its duty commonly is to decide upon individual rights, according to those principles which the political departments of the nation have established.”) See also United States v. Arredondo, 31 U.S. (6 Pet.) 691, 711 (1832)(endorsing this quote from Foster v. Neilson).

150 See supra notes __ and __ (citing authorities).

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domestic courts to determine through binding pronouncements; and (e) they are enforceable

through domestic legal sanctions.151 When these five characteristics concur, the Article III

judicial power extends to the enforcement of international law rights and obligations in domestic

law and thus to the creation of precedent in the process.

The two principal types of this “Article III international law,”152 treaties and customary

international law, will be familiar.153 But what as yet has not been fully appreciated is the

multiple avenues by which our legal system now channels these forms of familiar international

law into the enforcement authority of domestic courts. My goal in the paragraphs to follow is to

canvass these avenues and in the process uncover the broad and expanding field of unavoidable

judicial involvement in foreign affairs lawmaking.

The classic example of domestic law founded on international legal obligation is a self-

executing treaty. As the “supreme Law of the Land”154 within the enforcement authority of the

151 I acknowledge an intellectual debt here to the thoughtful analysis by Robert Scott and Paul Stephan of the general concept of the “formal enforcement” of international law. See Scott & Stephan, supra note Error: Reference source not found, at 1-16.

152 Cf. John McGinnis & Ilya Somin, Should International Law be Part of Our Law?, 59 STAN. L. REV. 1175, 1176-1177 (2007)(employing the term “domesticated international law,” but only in the narrower sense of law “which our political branches have expressly made part of our law through the legislative process”).

153 The available empirical evidence indicates that the Supreme Court historically has not shied from enforcing these twin forms of international law in cases properly before it. See Ariel N. Lavinbuk, Note, Rethinking Early Judicial Involvement in Foreign Affairs: An Empirical Study of the Supreme Court’s Docket, 114 Yale L.J. 855, 872 (2005)(examining “every foreign affairs case on the [Supreme] Court’s docket from 1791 to 1835” and concluding that foreign affairs matters were part of “the day-to-day business of the Court”). Empirical studies with a more modern focus have reached similar conclusions, although with a less comprehensive scope. See Kimi Lynn King & James Meernik, The Supreme Court and the Powers of the Executive: The Adjudication of Foreign Policy, 52 POL. RES. Q. 801, 802, 808-809 (1999)(surveying all Supreme Court cases in history, although employing limited search terms—not including, for example, the words “treaty” or “law of nations”–, but generally concluding “that the Supreme Court has often issued decisions where there are American foreign policy concerns”); Phillip R. Trimble, A Revisionist View of Customary International Law, 33 UCLA L. REV. 665 (1986)(arriving at a similar conclusion but with a focus on a subset of 100 cases that addressed customary international law).

154 U.S. Const. art. VI, § 2, cl. 2.

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federal courts under Article III,155 it is the “obligation” of the courts to enforce such treaties as

preemptive federal law.156 And from sheer numbers and substantive subject matters, the scope of

this judicial obligation is broad indeed. The roll of self-executing treaties accepted by the United

States now certainly exceeds 500.157 Contrary to popular perceptions, the Bush Administration

also was particularly active on this score: In eight short years it oversaw the ratification of over

100 self-executing treaties and related protocols.158 Finally, treaties may fall within judicial

155 Id., art. III, § 2, cl. 1 (“The judicial Power shall extend to all Cases, in Law and Equity, arising under … Treaties made, or which shall be made, under the[] Authority” of the United States).

156 See, e.g., United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801)(holding that because a treaty is the supreme law of the land “its obligation on the courts of the United States must be admitted”); Medellin v. Texas, 552 U.S. 491, 507 (2008)(observing that self-executing treaty provisions have the force and effect of a legislative enactment”)(quoting Whitney v. Robertson, 124 U.S. 190, 194 (1888)). A recent comprehensive study identified over ___ treaty cases decided by the Supreme Court alone. See THE U.S. SUPREME COURT AND INTERNATIONAL LAW: CONTINUITY OR CHANGE?, appendix __ (D. Sloss, M. Ramsey, & W. Dodge, eds., 2010).

157 Unfortunately, the State Department does not keep separate records for self-executing treaties. My own research has confirmed that over 500 exist. See Michael P. Van Alstine, Federal Common Law in an Age of Treaties, 89 CORNELL L. REV. 892, 921-23 (2004)(summarizing the results of this research). An updated list is on file with the author.

158 A list of these treaties is on file with the author.

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cognizance by congressional adoption of “treaty-statutes,”159 whether through formal legislative

incorporation, 160 indirect reference,161 or so-called Congressional-Executive Agreements.162

Customary international law is a more controversial subject.163 The Supreme Court has

endorsed federal common law-making only for certain narrow “enclaves”164 of “uniquely federal

interest.”165 One prime, though contested, example is the federal common law of foreign

159 For a general treatment see John F. Coyle, Incorporative Statutes and the Borrowed Treaty Rule, 50 AM. J. INT’L L. 655 (2010).

160 A prominent example is the 1970 act implementing New York Convention on Recognition and Enforcement of Foreign Arbitral Awards. See Act of July 31, 1970, Pub. L. No. 91-368, §1, 84 Stat. 692, 692 (codified at 9 U.S.C. § 201 (2010). Other examples include the act implementing the Inter-American Convention on International Commercial Arbitration, 9 U.S.C. § 301 (2010)); the Hague Convention on the Civil Aspects of International Child Abduction Implementation Act, 42 U.S.C. § 11601 (2010); and the Cape Town Treaty Implementation Act of 2004, 49 U.S.C. §44101 (2010).

161 In this vein, Congress often has expressly referred to treaties to supplement or limit its legislation. See, e.g., Conventional forces in Europe Treaty Implementation Act of 1991, Pub. L. 102-228, § 2751, 105 Stat. 1691 (1991)(declaring that “[t]he Authorities provided in this chapter shall be exercised consistent with the obligation incurred by the United States in connection with the CFE Treaty”); 10 U.S.C. § 802 (2009)(providing that any person “[s]ubject to any treaty or agreement to which the United States is or may be a party” are subject to the Uniform Code of Military Justice); 16 U.S.C. § 1435(a)(requiring that regulations on national marine sanctuaries comply “with treaties, conventions, and other agreements to which the United States is a party”); 18 U.S.C. § 957 (providing criminal sanctions for any person who “knowingly and willfully possesses or controls any property or papers used or designed or intended for use in violating … rights or obligations of the United States under any treaty”). A comprehensive list of the dozens of examples of this is available from the author.

162 This form of treaty incorporation is more controversial, for in many such cases the legislation may be so dense or the expression of congressional intent so clear as to preclude resort to the treaty for substantive interpretive material. An example is the Berne Convention Implementation Act, which includes a declaration that its provisions alone “satisfy the obligations of the United States” under the Convention. See Pub. L. 100-568, §101, 102 Stat. 2853, (1988)(also providing that “no further rights or interests shall be recognized or created for that purpose”). See also Uruguay Round Agreements Act, 19 U.S.C. § 3511 et seq. (2010); the North American Free Trade Agreement Implementation Act, 19 U.S.C. § 3311 et seq. (2010).

163 See supra note __ (citing some of the voluminous scholarship on this subject). See also Curtis A. Bradley, Jack L. Goldsmith, & David H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 HARV. L. REV. 869 (2007); David H. Moore, An Emerging Uniformity for International Law, 75 GEO. WASH. L. REV. 1 (2006).

164 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 426-27 (1964).165 United States v. Standard Oil Co., 332 U.S. 301, 307 (1947). See also, e.g., Boyle v. United

Technologies, 487 U.S. 500, 504 (1988); Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981).

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affairs.166 The Court itself reinvigorated controversy on this score with its rhetoric over

“international law cum common law” in Sosa v. Alvarez-Machain.167 Again, however, we need

not here engage with the details of the basic debate.168 It will suffice at this point to observe that,

at least in some narrow circumstances, the federal courts are empowered to enforce, if necessary

on their own authority, uniform federal solutions founded in international law.

In any event, the far more common source of authority for judicial enforcement of

customary international law is a delegation from Congress. Early in our constitutional history,

the Supreme Court endorsed the power of Congress to delegate such a discretionary authority to

the courts.169 And since then Congress has done so in great numbers. Well over one hundred

legislative provisions today grant rights or authorities, or otherwise define legal norms, through

an incorporation of “the law of nations” or “international law.”170

166 See, e.g., Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981)(declaring that federal common law governs matters “international disputes implicating ... our relations with foreign nations”)(citing, inter alia, Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425-27 (1964)).

167 542 U.S. 692 (2006).168 The proper place of maritime and admiralty law in this analysis poses a special problem. The

Supreme Court has long reasoned that Article III’s express inclusion of those matters in “the judicial Power” impliedly empowered the federal courts “to draw on the substantive law ‘inherent in the admiralty and maritime jurisdiction,’ and to continue the development of this law within constitutional limits[.]” Romero v. International Terminal Operating Co., 358 U.S. 354, 360-361 (1959)(quoting Crowell v. Benson, 285 U.S. 22, 55 (1932)). In some early cases, the Court referred extensively to “the law of nations” in fulfilling this responsibility. See Glass v. The Betsy, 3 U.S. [3 Dall.] 6, 9 (1794); Talbot v. Jansen, 3 U.S. [3 Dall.] 133, 159 (1795)(Iredell, J.). Since the Judiciary Act of 1789, see 1 Stat. 76, § 9, and to the present, see 28 U.S.C. § 1333 (2010), Congress also has granted to the federal district courts original jurisdiction over “[a]ny civil case of admiralty or maritime jurisdiction.” But it also included a savings clause that permitted such cases also to proceed in state courts under state law. Id. As a result, maritime and admiralty law today reflects an amalgam of state and federal law. It is, to be sure, also informed by international law, but it does not derive its content directly from that source.

169 See U.S. v. Smith, 18 U.S. 153, 158 (1820)(upholding a conviction on the basis of a Congressional act that criminalized piracy “as defined by the law of nations” against a claim that Congress could not leave the matter to judicial interpretation).

170 See, e.g., 10 U.S.C. § 821 (2010)(reserving the right of the military to try offenses that “by … the law of war” may be tried by military commissions); 18 U.S.C. § 1651 (2010)(criminalizing piracy “as defined by the law of nations”); 22 U.S.C. § 462 (2010)(empowering the President to detain foreign vessels at American ports when permitted “by the law of nations”). A comprehensive list of such incorporations of international law is on file with the author.

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The judicial obligation to enforce the international legal obligations may also come

through the vehicle of so-called sole executive agreements.171 Agreements made solely on the

basis of the executive’s independent powers under the Constitution may have limited domestic

law effects.172 A much more significant field of operation for executive agreements, however,

results from delegations of authority by Congress through formal legislation. Indeed, Oona

Hathaway has estimated that between 1990 and 2000 alone the executive branch concluded over

1300 executive agreements on such delegated authority.173

A final method by which federal courts recognize the international legal obligations of

the United States is an indirect one. Through a variety of interpretive presumptions, domestic

courts have given effect even to international legal norms otherwise not recognized through the

formal mechanisms discussed above. The most prominent among these is a general presumption

that in adopting domestic legislation Congress intends to abide by international law.174 A parallel

presumption operates for the protection of international norms contained in treaties175 and

171 For a comprehensive review of the subject see Bradford R. Clark, Domesticating Sole Executive Agreements, 93 VA. L. REV. 1573 (2007).

172 See Restatement of Foreign Relations § 303(4)(stating that the President may make a sole executive agreement “dealing with any matter that falls within his independent powers under the Constitution”).

173 Oona A. Hathaway, Presidential Power over International Law: Restoring the Balance, 119 YALE L.J. 140, 155-165 and n.29 (2009).

174 The rule traces its lineage to Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). See also F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004)(observing that “principles of customary international law” reflect “law that (we must assume) Congress ordinarily seeks to follow”). For a critical view see Curtis A. Bradley, The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law, 86 GEO. L.J. 479, 517-24 (1998). See also Ingrid Brunk Wuerth, International Law and Constitutional Interpretation: The Commander in Chief Clause Revisited, 106 MICH. L. REV. 61 (2007)(examining whether this presumption should extend to constitutional interpretation).

175 See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984)(“There is... a firm and obviously sound canon of construction against finding implicit repeal of a treaty in ambiguous congressional action.”). See also Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 538-539 (1995); Washington v. Wash. Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 690 (1979).

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executive agreements.176 Each of these meta-rules of interpretation of necessity involves a

primary judicial determination of the content of international law. That is, the presumption about

congressional intent first requires a court to identify the international legal norms with which

ambiguous legislation might conflict.

To be sure, except for “raw international law” recognized on judicial authority alone,177

the constitutional requirement of domestic recognition creates a discrete moment for domestic

lawmaking institutions to filter the content of international norms. Nearly all such moments,

however, are marked by a blanket assent (whether ex post or ex ante).178 The infrequency of

controversies over the influence of pre-ratification Senate treaty debates illustrates this point.179

What remains is substantial judicial discretion, and thus leadership, in the identification of our

legal obligations under international law.

III. EXAMINING THE SPECIAL RELATIONSHIP BETWEEN STARE DECISIS AND FOREIGN AFFAIRS

The striking fact from the above analyses of foreign affairs and stare decisis is how little

they seem to have in common. Accepted doctrine unthinkingly accords judicial decisions on

Article III international law the full force of stare decisis. Indeed, notwithstanding the sheer

volume of opportunities, the Supreme Court has never seriously examined the proper role of

stare decisis when a court creates a precedent in foreign affairs, even on the rules that govern our

176 Weinberger v. Rossi, 456 U.S. 25, 32 (1982)(applying the presumption in favor of preexisting executive agreements).

177 See McGinnis & Somin, supra note __, at 1176-1177 (employing this term). 178 The intent of the Senate and the President, primarily as reflected in formal texts, remain

decisive on the binary question of whether a treaty is self-executing. See supra note __-__ and accompanying text.

179 See United States v. Stuart 489 U.S. 353, 367 n. 7 (1989)(sanctioning the use of such materials). But see United States v. Stuart 489 U.S. 353, 373-374 (1989)(Scalia, J. concurring)(rejecting resort to such materials because “[t]he question before us in a treaty case is what the two or more sovereigns agreed to, rather than what a single one of them, or the legislature of a single one of them, thought it agreed to.”)

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nation’s relations with foreign states under international law.180 The sections to follow will show

that such an examination is long overdue.

Subpart A first sets the context with a review of why substantially more is at stake on

matters of Article III international law than with purely domestic law. Subpart B then

demonstrates that even the basic premises of stare decisis may become compromised when

courts create precedent on Article III international law. Subpart C will then explore the

institutional perspective, and in specific the fact and impropriety of judicial leadership in this

field. I pull the threads together in Part IV with an argument for a more nuanced understanding

of stare decisis on Article III international law precedents.

A. The Special Responsibility of the Judicial Station181

180 As noted in the introduction, the Supreme Court has only rarely paused even to mention stare decisis in such cases. See supra note __.

181 See The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 68 (1821)(observing in a treaty case that “we feel the responsibility of our stations”).

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The judicial enforcement of international legal norms differs, in both process and

product, in its essence from the application of purely domestic law. From their very nature, these

norms reflect formal rights or obligations under international law and thus function as elements

of that independent, external legal regime. It is in this fundamental respect, that international law

norms differ from purely domestic statutes, even those that directly regulate foreign affairs.

Nonetheless, disputes involving Article III international law also “arise under” federal law, and

thus fall to the domestic enforcement authority of federal courts.

The archetype of this duality is a self-executing treaty. A treaty is first and

fundamentally a product of international law.182 Its primary function is to create reciprocal

international legal obligations of the United States and a foreign state.183 And as elements of that

independent, external legal regime, the breach of treaty obligations may occasion international

discord, including various forms of legal sanctions and tangible retribution.184

Under the combined force of Articles III and VI,185 the Constitution also permits “self-

executing” treaties to fulfill the dual functions of international law obligation and judicially

enforceable domestic law.186 Even in such a case, however, the second function operates on the 182 See Vienna Convention on the Law of Treaties, supra note __, art. 26 (setting forth the core

principle that agreements between states reflect binding obligations); Restatement of Foreign Relations, supra note __, § 321 (same); id. § 301 (defining an international agreement as one “that is intended to be legally binding and is governed by international law”).

183 See Medellín v. Texas, 552 U.S. 491, 507 (2008)(declaring that that a treaty is “primarily a compact between independent nations”)(quoting the Head Money Cases, 112 U.S. 580, 598 (1884)).

184 See, e.g., Vienna Convention on the Law of Treaties, supra note __, art. 60 (setting forth the right of states to terminate a treaty for material breach by a member state). See also The Head Money Cases, 112 U.S. 580, 598 (1884)(observing that when “the interest and the honor of the governments which are parties to [a treaty] … its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war.”).

185 See supra notes __-__ and accompanying text (explaining that treaties are the law of the land under Article VI and fall within the judicial power of Article III).

186 See Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226 (1996)(“[A] treaty ratified by the United States is not only the law of this land ... but also an agreement among sovereign powers[.]”). See also Curtis A. Bradley, Self-Execution and Treaty Duality, 2008 S. CT. REV. 131, 157-159 (emphasizing

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foundation and against the interpretive background of the first. The Supreme Court thus long

ago declared that even the domestic law incidents of a treaty depend on the formal legal acts

required for the treaty’s entry into force under international law.187

the fundamental role of treaties as sovereign international commitments). For a comprehensive comparative study of this subject see THE ROLE OF DOMESTIC COURTS IN TREATY ENFORCEMENT, A COMPARATIVE STUDY (D. Sloss, ed., 2009). For an introduction into this abstract debate over dualism vs. monism see Curtis A. Bradley, Breard, Our Dualist Constitution, and the Internationalist Conception, 51 STAN. L. REV. 529 (1999); and Melissa A. Waters, Creeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human Rights Treaties, 107 COLUM. L. REV. 628 (2007).

187 See Haver v. Yaker, 76 U.S. 32, 34 (1869)(holding that the force of a treaty under domestic law depends on the formal international law act of the exchange of instruments of ratification)(citing United States v. Arredondo, 31 U.S. (6 Peters.) 691 (1832)). See also Dooley v. United States, 182 U.S. 222, 230 (1901)(same).

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The substantive content of a treaty likewise is found in its international law origins.

Supreme Court jurisprudence recognizes this point through a web of related interpretive

principles.188 Thus, the understandings and practices of international law, not “any artificial or

special sense impressed … by local law,” provide the interpretive background.189 Moreover,

precisely because it reflects agreed commitments among sovereigns, the ultimate responsibility

of a court is “to read [a] treaty in a manner ‘consistent with the shared expectations of the

contracting parties.”’190

The “shared” aspect here carries important implications for the work of federal courts.

First, and tellingly, the proper source for interpretive material is the international negotiating and

drafting records (the so-called travaux préparatoires).191 Evidence of shared original intent

likewise may be found in “the postratification understanding”192 of the treaty parties through their

subsequent course of conduct.193 Moreover, a prime aim of judicial enforcement of a treaty is

188 Like all such inquiries, the interpretation of a treaty of course “begins with its text.” Abbott v. Abbott, __ U.S. __, 130 S.Ct. 1983, 1990 (2010)(quoting Medellín v. Texas, 552 U.S. 491, 506 (2008)).

189 See Geofroy v. Riggs, 133 U.S. 258, 271 (1890). See also United States v. Percheman, 32 U.S. [7 Pet.] 51, 86-87 (1833)(interpreting a treaty against the backdrop of the “modern usage of nations”); The Pizarro, 15 U.S. (2 Wheat.) 227, 246 (1817)(“[T]he language of the law of nations ... is always to be consulted in the interpretation of treaties.”).

190 Olympic Airways v. Husain, 540 U.S. 644, 650 (2004) (quoting Air Fr. v. Saks, 470 U.S. 392, 399 (1985)). See also Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 185 (1982) (observing that in interpreting a treaty a court’s “role is limited to giving effect to the intent of the treaty parties”).

191 See, e.g., Medellín v. Texas, 552 U.S. 491, 507 (2008)(“Because a treaty ratified by the United States is ‘an agreement among sovereign powers,’ we have also considered as ‘aids to its interpretation’ the negotiation and drafting history of the treaty”)(quoting Zicherman v. Korean Airlines, 516 U.S. 217, 226 (1996)). The Senate ratification debates may become relevant, but only in quite rare circumstances. See supra note __ and accompanying text.

192 Id.193 O’Connor v. United States, 479 U.S. 27, 33 (1986)(“The course of conduct of parties to an

international agreement, like the course of conduct of parties to any contract, is evidence of its meaning.”)(citing Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 259-260 (1984); and Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 158-161 (1934))

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uniformity of interpretation.194 To secure this goal, the Supreme Court has consistently

emphasized that “the ‘opinions of our sister signatories’ ... are ‘entitled to considerable

weight.’”195

Although the authority on treaties is richer, the same basic considerations apply for the

judicial application of executive agreements and customary international law. Like treaties,

written executive agreements may live a dual life of formal sovereign obligation under

international law196 and judicially cognizable domestic law.197 Norms of customary international

law, by standard description, arise through a near universal practice followed “from a sense of

legal obligation.”198 When they so coalesce, the norms likewise represent binding rights or

obligations under international law.199 And we have seen above, in a large variety of

194 See Olympic Airways v. Husain, 540 U.S. 644, 660 (2004) (Scalia, J., dissenting)(“[I]t is reasonable to impute to the parties an intent that their respective courts strive to interpret the treaty consistently”); Sanchez-Llamas v. Oregon, 548 U.S. 331, 354-355 (2006)(Breyer, J., dissenting) (observing that “uniformity is an important goal of treaty interpretation”).

195 Abbott v. Abbott, __ U.S. __, 130 S.Ct. 1983, 1993 (2010)(quoting El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 176 (1999)(internal quotations omitted). See also Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 550-51 (1991)(“We must also consult the opinions of our sister signatories” in determining the meaning of a treaty). See generally Sean D. Murphy, Supreme Court’s Use of Court Decisions of Treaty Partners, 98 AM. J. INT’L L. 579 (2004).

196 International law makes no formal distinction between types of “international agreements.” See Vienna Convention on the Law of Treaties, Art. 2(1)(defining a “treaty” as “an international agreement concluded between States in written form and governed by international law”).

197 See supra notes __-__ and accompanying text. See also Japan Whaling Ass’n v. American Cetacean Soc., 478 U.S. 221, 230 (1986)(“As Baker plainly held … the courts have the authority to construe … executive agreements[.]”)(citing Baker v. Carr, 369 U.S. 186 (1962)). See also Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1408 (9th Cir.1995)(“Executive agreements ... are interpreted in the same manner as treaties and reviewed by the same standard.”). See also Kwan v. U.S., 272 F.3d 1360, 1363 (3rd Cir. 2001)(same).

198 See Restatement (Third) of the Foreign Relations Law of the United States § 102(2) (1987)(stating that customary international law “results from a general and consistent practice of states followed by them from a sense of legal obligation”).

199 CITATION.

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circumstances such norms also may fall within the domestic enforcement authority of federal

courts.200

200 See Japan Whaling Ass’n v. American Cetacean Soc., 478 U.S. 221, 230 (1986)(“As Baker plainly held … the courts have the authority to construe … executive agreements[.]”)(citing Baker v. Carr, 369 U.S. 186 (1962)).

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special emphasis. There, “in delivering [its] opinion to the world,” the Court summarized the

issues at stake in treaty enforcement:

embrace principles of international law of vast importance; they embrace private interests of no inconsiderable magnitude; and they embrace the interpretation of a treaty which we are bound to observe with the most scrupulous good faith, and which our Government could not violate without disgrace, and which this Court could not disregard without betraying its duty. It need not be said, therefore, that we feel the responsibility of our stations on this occasion.204

These sentiments were once reflected in prudential doctrines designed to protect against

judicial misadventures. The twin principles of “good faith” and “liberal” treaty interpretation

served to remind courts that substantially more is at stake in enforcing treaties than in applying

law of a purely domestic origin.205 But as I have explained in detail elsewhere, these venerable

doctrines quietly disappeared from judicial consciousness early in the last century.206 And as the

doctrine of stare decisis coalesced on a separate path, judicial decisions insensitive these

concerns were reinforced with full precedential effect.

Of course, the interpretation and application of legal norms is standard judicial fare. As

well, prosaic domestic statutes may directly affect foreign affairs.207 But in such cases, the

relationship between law-maker and law-applier is solely a domestic one.208 And where

204 19 U.S. (6 Wheat.) 1, 68 (1821). See also Chew Heong v. United States, 112 U.S. 536, 540 (1884)(declaring on the interpretation of treaty provisions that “the court cannot be unmindful of the fact that the honor of the government and people of the United States is involved in every inquiry whether rights secured by such stipulations shall be recognized and protected”). See also Bradley, Treaty Duality, supra note Error: Reference source not found, at 181 (observing that “every treaty is a contract that implicates the U.S. relationship with one or more other nations, and such a relationship inherently includes political as well as legal elements, such as considerations of reciprocity, reputation, and national interest.”).

205 For a broad treatment of this subject see Van Alstine, Good Faith, supra note __.206 See Van Alstine-Good Faith, supra note __, at 907-919.207 See Restatement of Foreign Relations, supra note __, § 1(b) (including within “foreign

relations law” purely domestic law that “ has substantial significance for foreign relations … or has other substantial international consequences”).

208 For administrative law of course the source of law is domestic regulatory agencies under authority delegated by Congress.

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Congress takes it upon itself to define the entire content of the law—without importing

international legal norms—the courts must look solely to familiar domestic sources in

interpretive inquiries.209 To be sure, judicial action here as well may hold consequences for

foreign relations. Nonetheless, with purely domestic law statutes the courts’ essential role—

subject to interpretive presumptions210—is to apply the value judgments first made by Congress

within its constitutionally delegated sphere of authority. Fidelity to those value judgments

should dispel both the appearance and effect of judicial leadership.211

On Article III international law, in contrast, the necessary consequence of precedent is a

definition of rights or obligations that govern in our nation’s relations with foreign states.

Unavoidably, this involves, at a minimum, the appearance of direct judicial entanglement in

foreign affairs. The immensity of this responsibility should alone give us pause about reflexively

endowing such precedents with full stare decisis effect. But as the next sections will

demonstrate, even the premises of stare decisis are compromised when the courts are called upon

to give content to international law.

209 The Supreme Court missed this fundamental point in Sanchez-Llamas v. Oregon. In the process of rejecting a treaty claim there, the Court observed that “[i]t is no slight to the Convention to deny petitioners’ claims under the same principles we would apply to an Act of Congress.” 548 U.S. 331, 360 (2006).

210 See supra notes __-__ and accompanying text.211 See Japan Whaling Ass’n v. American Cetacean Soc., 478 U.S. 221, 230 (1986)(observing

that, although the application of a statute had direct foreign policy implications, “under the Constitution, one of the Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones”).

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B. Destabilized Values: The Limits of Authority, Stability, and Legitimacy

1. Stability and Exogenous Forces of Change: Uni-Polar Stare Decisisin a Multi-Polar System

An essential foundation for a rational doctrine of binding precedent, as I have explained

above, is a court of last instance with the authority to settle the law for its defined jurisdiction.212

Stare decisis then advances the values of stability and predictability by compelling lower court

fidelity in a hierarchically integrated system; and it bolsters the values of judicial legitimacy by

constraining the situational discretion of even the declaring court.

212 See supra notes __-__ and accompanying text.

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Notions of stability and legitimacy take on different dynamics, however, when domestic

courts are called upon to give content to Article III international law. The origin of the law in

such inquiries—the source from which the obligations emerge and derive their content—is the

international legal system.213 The problem is that no judicial authority exists today with the

power to issue final and enforceable judgments on international law. The International Court of

Justice could be in a position to fulfill this function. The United States long ago withdrew from

the compulsory jurisdiction of the ICJ,214 however, and appears prepared to do the same for any

discrete jurisdictional grants when actual controversies arise.215 In any event, Medellín v. Texas

made abundantly clear that the international system itself does not compel precedential effect for

ICJ judgments.216

All that remains to settle the law are the disparate domestic courts of the states that

comprise the international system. But these courts are not integrated in any structural way, and

certainly not hierarchically so. The process of “say[ing] what the law is” in this realm is instead

multi-centric,217 with judicial authority dispersed among the various players in the system. The

unwritten rules of customary international law, founded as they are on evidence of generalized

213 See supra Part III.A.214 See Letter and Statement From U.S. Dep’t of State Concerning Termination of Acceptance of

I.C.J. Compulsory Jurisdiction (Oct. 7, 1985), reprinted in 24 I.L.M. 1742 (1985).215 The United States thus promptly withdrew from an optional jurisdictional protocol to the

Vienna Convention on Consular Relations—Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820—following an adverse decision by the ICJ. See Letter from Condoleezza Rice, Secretary of State, to Kofi A. Annan, Secretary-General of the United Nations (Mar. 7, 2005)(giving notice of the withdrawal).

216 552 U.S. at 522-523.217 I use this term in contradistinction to “polycentric” law. See Randy E. Barnett, THE

STRUCTURE OF LIBERTY: JUSTICE AND THE RULE OF LAW 238-97 (1998)(describing a polycentric constitutional system). International law is not a law-less cloud of facts merely awaiting some indiscriminate form of seeding. It remains in its essence state-centered and requires consent as reflected in the sovereign conduct of states. The determination of international law thus proceeds on the foundation of accepted legal rules and through formalized judicial processes.

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state practice, present this point starkly.218 With only a disaggregated judicial system, precedent

on such matters is a process, not an event. Systemic stare decisis makes no sense here. System

cohesion instead exists only through cooperation driven by good faith adherence to the rule of

law among the participants.

218 See supra notes __-__ and accompanying text (describing the process for the creation of customary international law).

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law-finders, not law-makers, even a final decision by a supreme court does not formally bind

lower courts. Of course, prudential considerations continue to hold some sway, as comparative

studies of judicial practice have demonstrated.221 Nonetheless, this elevation of the law over an

initial judicial impression of it demonstrates, first, that immediate adherence to precedent is

neither axiomatic nor “indispensible” to the rule of law.222 Moreover, the willingness to reassess

initial impressions based on better quality information highlights the inability of a domestic

judicial precedent to impose stability in the content of international law.

In any event, careful reflection reveals that at least in part existing stare decisis doctrine

already recognizes—although the courts themselves have not—that evolving evidence of

international law may immediately undermine a precedent. We have seen on treaty law, for

example, that courts should examine the “course of conduct” of the treaty parties as well as the

views of “sister state” courts.223 Even a Supreme Court treaty decision will not control future

developments on either of these important interpretive sources.224

All of this demonstrates that the foundations of judicial decisions on international legal

norms are particularly susceptible to immediate erosion. Even on existing jurisprudence, this

221 See Merryman, supra note Error: Reference source not found, at 47. For a comprehensive treatment of the subject see INTERPRETING PRECEDENTS: A COMPARATIVE STUDY (D. Neil MacCormick & Robert S. Summers, eds., 1997).

222 See Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992).223 See supra notes __-__ and accompanying text. The Supreme Court has on occasion also cited

subsequent developments in other maritime nations as grounds to overrule admiralty precedents. See United States v. Reliable Transfer Co., 421 U.S. 397, 397-398 (1975)(observing in connection with the overruling of an earlier admiralty rule that “[t]he courts of every major maritime nation except ours have long since abandoned th[e] rule”); Moragne v. States Marine Lines, Inc., 398 U.S. 375, 388-389 (1970)(citing subsequent judicial and legislative developments in England as a ground for overruling a long-standing rule of admiralty law).

224 A particularly spirited exchange between the majority and (interestingly) Justice Scalia in Olympic Airways v. Husain demonstrates the difficulty of reconciling conflicting trends in foreign court treaty interpretations. Olympic Airways v. Husain, 540 U.S. 644, 658-667 (2004)(Scalia, J., dissenting)(criticizing the majority for its “sudden insularity” in “fail[ing] to give any serious consideration to how the courts of our treaty partners have resolved the legal issues before us”); 540 U.S. 644, 655 n.9 (rejecting this characterization).

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fact should justify a more nuanced approach to stare decisis on such matters. Recall that a

principal factor in reevaluating a precedent is whether subsequent developments have

undermined its factual or doctrinal foundations.225 What courts and scholars have not fully

appreciated is that on matters of international law change of this nature is baked into the system.

In addition, the private reliance interests that counsel fidelity to precedent226 become less

convincing as divergences create jurisdictional uncertainty (as well as the opportunity for forum

shopping).

Of course, even a purely domestic law precedent may be subject to subsequence legal and

societal developments. But stare decisis works as a serious constraint on such domestic

developments and, except at the margins and over significant time, almost completely prevents

them within the judicial system. This reinforces the propriety of existing stare decisis norms for

purely domestic statutes. In international law matters, in contrast, exogenous forces of change

may have an immediate and direct influence on precedent. And the absence of an integrated

judicial system, a principal source of such change actually may be later courts called upon to

address the same subject.

Unfortunately, the Supreme Court recently missed two prime opportunities to recognize

this point. In Sanchez-Llamas v. Oregon in 2006,227 the Court examined the force of subsequent

ICJ rulings on an original treaty interpretation decision. Regrettably, however, the majority’s

opinion there focused only on the direct precedential effect of the ICJ rulings.228 Only Justice

Breyer in dissent recognized (properly, although only briefly) that the ICJ decisions in fact

225 See supra notes __-__ and accompanying text.226 See supra notes __-__ and accompanying text.227 548 U.S. 331 (2006).228 Id., at 353-357 (observing that ICJ decisions are entitled only to “respectful consideration”).

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reflected the kind of subsequent developments that are relevant for stare decisis analysis.229 Four

years later, the Court returned to the same subject in Medellín v. Texas after a definitive holding

of the ICJ.230 But the Court there again analyzed only the binding effect of the ICJ’s holding;231

no justice saw it as an additional, subsequent fact that would permit the Supreme Court itself to

reexamine its original analysis.

229 548 U.S. 331, 389-390 (Breyer, J., dissenting)(observing that although the Court’s earlier decision is “entitled to full stare decisis effect,” the later decisions of the ICJ “amount to a ‘significant … subsequent development’ of the law sufficient to lead to a reconsideration of past precedent”)(quoting Agostini v. Felton, 521 U.S. 203, 236 (1997)).

230 552 U.S. 491 (2008).231 Id., at 507.

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The point here is not that the conclusions in Sanchez-Llamas and Medellín necessarily are

wrongheaded. It is that the Court missed serious opportunities to refine our understanding of

stare decisis in relation to the international legal obligations of the United States. This is

especially regrettable for the stare decisis practice of the federal courts of appeal. I will have

much more to say about this below.232 The point of emphasis at this stage is that nearly all final

declarations of international law in this country come from the federal courts of appeal;233 but the

rigid stare decisis rules that obtain in those courts almost entirely prohibit consideration of the

exogenous forces that may continually undermine precedent on such matters.

2. Expertise and the Risks of Error

232 See infra Part IV.B.233 See infra notes __-__ and accompanying text.

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understandings. Even common legal concepts often require translation—linguistic, cultural, and

otherwise. For any particular domestic court, therefore, the legal product of an international

lawmaking process is quite literally foreign.

This is true even for conventional law in the form of treaties and executive agreements.

As I have analyzed elsewhere,236 the negotiation and drafting process for treaties—in particular

the inability of a majority to impose its will on dissenters—contrasts starkly from that for

domestic statutes. With the overlay of heterogeneity among the negotiators, the result is often

broad linguistic compromises of complicated, multilateral origins.237 Participant diversity

likewise often requires multiple, equally authoritative, language texts.238 Treaties may also

contain “false friends,” both linguistic and conceptual, and otherwise may settle only

uncomfortably in our own distinctive legal culture. Even plain meanings thus may not be plain.

Customary international law is fraught with the bulk of these challenges and more. These

rules arise through a cooperative, multiplayer process whose results are not distilled in any

authoritative compilation. When enforcement falls to our domestic courts,239 therefore, they must

examine a fluid process with multiple players from widely divergent cultural, legal, political, and

linguistic traditions. This diversity may obscure the significance of any particular state action,

expression, or practice. Strikingly uneven levels of development and international participation

further complicate the picture. Simply gathering reliable information thus represents an

enormous undertaking for the courts. But they, too, approach the problem schooled in our

236 See Van Alstine, Treaty Good Faith, supra note __, at 1923-1924.237 See also Bradley, Treaty Duality, supra note Error: Reference source not found, at 132

(examining the same subject).238 See generally Dinah Shelton, Reconciliable Differences? The Interpretation of Multilingual

Treaties, 20 HASTINGS INT'L & COMP. L. REV. 611 (1997).239 See supra notes __-__ and accompanying text.

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distinctive legal system and with our own distinctive cultural assumptions. All of these

challenges are magnified for the federal courts of appeal.240

The special challenges courts face when they inquire into foreign affairs already have

found expression in some Supreme Court opinions. In specific, we have seen that concerns

about access to reliable information, judicial expertise, and the uncertain implications have

informed analyses of foreign affairs abstention doctrines.241 Ultimately, these considerations

reflect ex ante admonitions to the courts about the unfamiliarity of the territory and thus about

the risks of improvident action. Combined with the special challenges described immediately

above, the message is that the risks of error in first judicial impressions of international law are

simply greater.

240 For more on this point see infra notes __-__ and accompanying text.241 See supra notes __-__ and accompanying text. See also Ramsey, TEXT AND FOREIGN

AFFAIRS, supra note __, at 327 (“observing that “it is surely true that, especially in international matters, courts sometimes lack access to factual information needed to resolve cases”); Charney, supra note __, at 102-106 (examining as factors in political question analysis in foreign affairs, inter alia, “expertise in the law,” “access to facts,” “international law is alien,” “important and uncertain effects,” and the need for a “sole voice.”).

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increased likelihood that a particular precedent will not be “well reasoned”242 in the first place.

This does not mean that courts should abdicate their responsibility to resolve disputes properly

before them. It is, however, further evidence that rigid stare decisis norms are inappropriate

when courts in fact do so and in the process create precedent in the unfamiliar realm of

international law.

C. Separation of Powers, Stare Decisis, and Article III International Law

A deeper appreciation of the relationship between precedent and separation of powers

also compels a reassessment of stare decisis on Article III international law. In foreign affairs

matters, and particular on international law, the Supreme Court has repeatedly cautioned that the

judiciary should be “particularly wary of impinging on the discretion of the Legislative and

Executive Branches.”243 To carry forward a theme from above, this concern founded in

separation of powers relationships between the judiciary and the political branches does not

dissolve merely because a court in fact creates a precedent.

1. Legitimacy and the Blurring of Law-Finding with Law-Making

In our constitutional system, the federal judicial branch, “purposefully insulated from

democratic pressures,”244 fundamentally is not a lawmaker. This general premise finds special

emphasis in foreign affairs. The occasional statements that the actions of the political branches

in this field are “largely immune from judicial inquiry or interference,”245 though jolting out of

context, merely reflect a basic principle: that the province of the judicial branch does not extend 242 See supra notes __-__ and accompanying text (examining this accepted ground for overruling

a precedent).243 Sosa v. Alvarez-Machain, 542 U.S. at 727. See also Sabbatino, 376 U.S. at 427-428

(highlighting the need for a particular judicial action in the field of foreign affairs “to reflect the proper distribution of functions between the judicial and political branches of the Government on matters bearing upon foreign affairs”).

244 Boyle v. United Technologies Corp., 487 U.S. 500, 518 (1988).245 Regan v. Wald, 468 U.S. 222, 242 (1984)(quoting Harisiades v. Shaughnessy, 342 U.S. 580,

589 (1952)).

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to supervising foreign relations unhinged from Article III cases and controversies.246 As we have

seen, however, the Article III cases and controversies that in fact require judicial engagement

with international legal relations are broad and numerous indeed.

246 See, e.g., Barker v. Harvey, 181 U.S. 481, 488 (1901)(noting that the Supreme Court “has no power” to enforce international treaty obligations denounced by the United States); The Head Money Cases, 112 U.S. 580, 580 (1884)(observing that where a treaty does not of its own force create judicially enforceable domestic law, “its infraction becomes the subject of international negotiations and reclamations ... [and] with all this the judicial courts have nothing to do and can give no redress.”); United States v. Ferreira, 54 U.S. 40, 48 (1851)(declaring that whether the United States had complied with its executory promises under a treaty “is a question … with which the judicial branch has no concern”).

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The position of the judiciary in such engagements differs from that for purely domestic

law as a matter of kind, not merely of degree. This point is woven among much of the analysis

above. Here I explore the institutional implications. Recall, first, that the result of judicial

decisions on Article III international law is a formal definition—not merely by implication or

practical effect—of the rights or obligations that govern in our nation’s legal relations with

foreign states. At its most consequential, this will involve the identification of sovereign

obligations of the United States, whether to other states or to individuals.247 International law

may also address relations between private parties; but even here judicial action is premised on

the right or obligation of the United States to enforce norms that arise out of legal relations with

or among other sovereign states.

This functional agency alone is uncharacteristic of the judicial station in our

constitutional system. It becomes especially problematic in light of the nature and extent of the

value judgments that inhere in the identification of Article III international law. Even as a

general matter, uncertainty in the articulation of legal rules often requires value judgments as

courts fulfill their duty to “expound and interpret” the law.248 As Jerome Frank observed over a

half century ago, the risk in such cases is that “interpretation is inescapably a kind of

legislation.”249 But the problem is particularly acute in the fluid world of international law. The

Supreme Court stated this point directly in Sosa v. Alvarez-Machain: “A judge deciding in

reliance on an international norm,” it declared, “will find a substantial element of discretionary

247 See Restatement of Foreign Relations, supra note __, § 101 (stating this proposition).248 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).249 Jerome Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 COLUM. L.

REV. 1259, 1269 (1947).

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judgment in the decision.”250 By whatever term one prefers, discretion in the identification of

binding legal norms is lawmaking.

250 542 U.S. 692, 726 (2004).

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Concerns about freelance lawmaking will be starkest for the identification of customary

international law. For common lawmaking of this type, modern realism has long dispatched the

fiction of “finding” the law. Instead, as the Court aptly observed in Sosa, in most such matters

“there is a general understanding that the law is not so much found or discovered as it is either

made or created.”251 On such matters, the absence of an authoritative text, the complicated and

unfamiliar lawmaking processes, and the linguistic, cultural, and legal differences among the

participants252 combine to increase substantially the “open texture”253 of international law. In

many cases, the ambiguous mixture of law and policy that pervades international relations will

leave doubt over the very existence of legal rules. The disordered, fluid process for addressing

the consequent doubts through judicial interpretation only adds to the indeterminacy.254 Even the

evidentiary standards are unclear, for international law sanctions resort to “any relevant material

or source” in identifying the content of the law.255

Judicial action in this field is also subject to special sensitivities not present for purely

domestic law, whether statutes or rare federal common lawmaking. Concerns about the

democracy deficit that surround judicial discretion in general are pronounced in the international

realm.256 Moreover, unlike purely domestic law, episodic and interstitial judicial lawmaking on

251 Id., at 729. See also id. (observing that “we now tend to understand common law not as a discoverable reflection of universal reason but, in a positivistic way, as a product of human choice.”)

252 See supra notes __-__ and accompanying text.253 The famous scholar of jurisprudence H.L.A. Hart employed this term to describe the

indeterminacy in the law. See H.L.A. Hart, THE CONCEPT OF LAW 124-25 (1961.254 Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 434-435 (1964)(describing as “quite

unpersuasive” the argument that the Court should recognize a rule of international law on the act of state doctrine merely because “United States courts could make a significant contribution to the growth of international law”).

255 See Restatement of Foreign Relations, supra note __, § 113 (stating that in such inquiries “courts may in their discretion consider any relevant material or source, including expert testimony[.]”).

256 See, e.g., McGinnis & Somin, supra note __, at 1193-1224 (examining the democracy deficit in the creation and identification of customary international law).

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international law does not unfold within a cohesive legal system familiar to the courts. This

further highlights the inability of judicial lawmaking to provide the “flexibility, completeness,

and comprehensive coherence” 257 especially important in delicate matters of foreign relations.

257 See Henkin, Foreign Affairs and the Constitution, supra note __, at 140 (also observing that “[j]udge-made law, the courts must recognize, can serve foreign policy only interstitially, grossly, and spasmodically”).

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To be sure, the Constitution expressly contemplates judicial enforcement of treaties.258

On this basis, federal courts properly have applied treaties throughout constitutional history.

And of course a treaty’s text provides a substantially more secure foundation for faithful

interpretation. Nonetheless, the identification of treaty obligations also raises concerns about the

nature and extent of independent judicial value judgments. The special legal, cultural, and

linguistic challenges that complicate the interpretation of treaties also increase the open texture

of the law, and thus the space, and sometimes the need, for judicial discretion. Moreover, the

evolving, cooperative process of treaty interpretation in the international realm259 means that

courts contribute to the content of law whenever they purport to interpret it. This impact on the

judgment of future decision-makers highlights a phenomenon Frederick Schauer has termed “the

forward-looking aspect of precedent.”260 In this respect, judge-found law for treaties may

function as a close cousin of judge-made law.

The consequences of precedent on international law, as we have seen, also can be

substantially more significant than domestic law. The Supreme Court itself has highlighted the

“risks of adverse foreign policy consequences” that attend judicial forays into international

law.261 Of course, not all matters of international law will touch the “national nerves” to the same

extent.262 Nonetheless, even judicial interpretations of purely private law treaties can trigger

significant international friction. The recurrent controversies over the proper scope of custodial

rights under the Hague Child Abduction Treaty provide a good example. Although the litigants

are private parties, perceived judicial infidelity to this treaty’s obligations have led to 258 See U.S. const., art. III, § 1.259 See supra notes __-__ and accompanying text.260 Frederick Schauer, Precedent, 39 STAN. L. REV. 571, 572-573 (1987).261 Sosa v. Alvarez-Machain, 542 U.S. 692, 727-728 (2004).262 See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964)(“It is also evident that

some aspects of international law touch much more sharply on national nerves than do others[.]”)

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recriminations at the highest levels of government.263 And as the Supreme Court long ago

observed, “experience has shown that international controversies of the gravest moment … may

arise from real or imagined wrongs to [another nation’s] subjects inflicted, or permitted, by a

government.”264

The message here is not that judicial precedent on international law matters is in a formal

sense “illegitimate,” as Justice Scalia asserted in Sosa v. Alvarez-Machain.265 Courts can, do, and

should decide such matters, even (when properly authorized) on customary international law.

Increase indeterminacy, however, involves increased discretion. The concern, then, is with the

appearance and effect of judicial leadership in the very definition of legal relations with foreign

states. An overwhelming international consensus on a particular issue (say, on genocide266) may

diminish the appearance of judicial innovation.267 But as the courts participate in the

identification of the law itself, they extend to the edges of the legitimate judicial function. In

this, there is a greater risk of undermining the perception of a principled, law-bound judiciary.268

263 See, e.g., Abbott v. Abbott, __ U.S. __, 130 S.Ct. 1983, 1993 (2010)(highlighting “the diplomatic consequences resulting from this Court’s interpretation of ‘rights of custody,’” under the Convention, “including the likely reaction of other contracting states and the impact on the State Department’s ability to reclaim children abducted from this country”). See also Van Alstine, Good Faith, at 1927 and n. 302 (noting the controversies over allegations that German courts have failed to enforce the Convention in good faith).

264 Hines v. Davidowitz, 312 U.S. 52, 64 (1941).265 542 U.S. at 750-751 (Scalia, J. concurring in part and concurring in judgment).266 See Kadic v. Karădzíc, 70 F.3d 232, 239-241 (2nd Cir. 1995).267 See Sabbatino, 376 U.S. at 428 )“It should be apparent that the greater the degree of

codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it[.]”).

268 See supra notes __-__ and accompanying text (analyzing this value of the stare decisis doctrine). See also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964)(emphasizing that by requiring strong evidence of international law, “the courts can then focus on the application of an agreed principle to circumstances of fact rather than on the sensitive task of establishing a principle not inconsistent … with international justice”).

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In this field of unclear guideposts, finally, the implications of a precedent may be

particularly difficult to gauge, although the consequences may be particularly serious. And

unlike the Supreme Court, the federal courts of appeal cannot duck the sensitivity of this subject,

a point I will address in much more detail below.269 Here again, the Supreme Court has

addressed the risks of judicial leadership with an ex ante admonition about improvident

interference in sensitive matters of foreign relations.270 And here again, the insights of this

admonition do not disappear simply because a court in fact has created a precedent.

269 See infra Part III.D.2.270 See Sosa, 542 U.S. at 727 (stating that because of the “risks of adverse foreign policy

consequences,” attempts by courts to create remedies for international law violations “should be undertaken, if at all, with great caution”); id. at 726 (observing that on customary international law “the general practice has been to look for legislative guidance before exercising innovative authority over substantive law”).

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certainly correct that, for purposes of domestic law, Congress has the authority to modify or

nullify a judicial decision that recognizes a norm of customary international law.273

The matter is more complicated for a pure interpretation of a treaty. To be sure, Congress

may by statute fully abrogate a treaty.274 In the Military Commissions Act in 2006,275 Congress

also intervened to change domestic law in response to the Supreme Court’s interpretation of the

Geneva Conventions in Hamdan v. Rumsfeld.276 Congress may not, however, strip vested treaty

rights277 or otherwise retroactively overrule a final judgment recognizing them.278 More

generally, one may well construct a compelling argument that Congress does not have the power

to undertake the purely judicial task of interpreting a specific treaty provision, even under the

Necessary and Proper Clause.279 That is, it is at least open to doubt whether Congress may

272 Pearson v. Callahan, __ U.S. __, 129 S.Ct. 808, 816-817 (2009)(quoting Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977)). See also supra notes __-__ and accompanying text.

273 See Sosa v. Alvarez-Machain, 542 U.S. 692, 731 (2004)(declaring that Congress “may modify or cancel any judicial decision so far as it rests on recognizing an international norm as such”). See also Restatement of Foreign Relations, supra note __, § 115(1)(a)(stating that “[a]n act of Congress supersedes an earlier rule of international law … as law of the United States”).

274 See La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 (1899); Head Money Cases, 112 U.S. 580, 599 (1884).

275 Military Commissions Act of 2006, §6(a)(2), Pub. L. No. 109-366, 120 Stat. 2600, 2631-32 (codified in scattered sections of 18 and 28 U.S.C.)(defining “grave breach” of Article 3 of the Third Geneva Convention and declaring that this definition “fully satisfy[ies]” the obligations of the United States under the Convention).

276 548 U.S. 557 (2006).277 See Jones v. Meehan, 175 U.S. 1, 32 (1899)(observing that “Congress has no constitutional

power to settle the rights under a treaty, or to affect titles already granted by the treaty itself”). See also Wilson v. Wall, 73 U.S. [6 Wall.] 83, 89 (1867)(same).

278 See Plaut v. Spendthrift Farm, 514 U.S. 211, 217-18 (1995)(holding that Congress may not retroactively overturn a final judgment of an Article III court).

279 U.S. Const., art. I, § 8, cl. 18. See generally Gary Lawson & Patricia B. Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267, 271-72 (1993) (discussing the “propriety” requirements of the Necessary and Proper Clause).

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compel the courts to interpret a treaty provision in a certain way if it otherwise leaves the treaty

fully in effect.280

In any event, the animating force for the differential treatment of constitutional and

statutory precedents is not found in the simple availability of congressional override. As

analyzed above, the special force of stare decisis on statutory matters instead arises from a

deeper deference to the policymaking authority of Congress within the realm of its own

legislative products.281 Where Congress itself provides the content of the law, the proper role of

the judiciary thus is to implement the value choices made by the people’s representatives there.

And once a court has faithfully done so, it is entirely appropriate to defer to Congress for

subsequent correction of the law of its own creation.

On this score, precedents on Article III international law differ fundamentally from those

on purely domestic statutes. Congress is the original source of law neither for customary

international law nor for treaties. The point is particularly stark for CIL. The courts create

precedent on such matters—whether through blanket delegation or on their own authority282—

280 The distinction here is between abrogating a treaty and compelling the courts to interpret it in a particular way. The former is clearly a legislative power; the latter partakes much more of a judicial power reserved to Article III courts. As the Supreme Court observed in Plaut v. Spendthrift Farms—quoting “the great constitutional scholar” Thomas Cooley—, Congress may not “indirectly control the action of the courts, by requiring of them a construction of the law according to its own views.” 514 U.S. at 225 (quoting Thomas McIntyre Cooley, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 94-95 (1868)). Cooley elsewhere observed that a legislature may not “compel the courts for the future to adopt a particular construction of a law which the legislature permits to remain in force.” Cooley, supra, at 94. The Supreme Court, however, elsewhere has indicated otherwise. See Chew Heong v. U.S. 112 U.S. 536, 562-563 (1884)(observing that “Congress may, as with an ordinary statute, modify [a treaty’s] provisions, or supersede them altogether.”); United States v. Stuart, 489 U.S. 353, 375 (1989)(Scalia, J., concurring)(“[I]f Congress does not like the interpretation that a treaty has been given by the courts or by the President, it may abrogate or amend it as a matter of internal law by simply enacting inconsistent legislation.”).

281 See supra notes __-__ and accompanying text.282 See supra notes __-__ and accompanying text.

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based on their own assessments about the content and even the existence of the law.283 To the

extent they are able to cite value judgments in the creation of this law, the source is not

Congress, but rather the complicated, fluid, and multi-polar lawmaking processes examined

above that are external to our polity.284

Though different in nuance, the same principle applies for Article II treaties. Here, the

value judgments distilled into law are not made solely within our domestic legal order, but rather

through negotiation with foreign treaty partners.285 Moreover, the Senate—not Congress as a

whole—is the formal source of legislative branch approval. And the Senate, even in cooperation

with the President,286 does not have the power to override a judicial treaty precedent.287

All of this substantially complicates the dialogue between lawmaker and law-interpreter

that William Eskridge has highlighted for domestic statutory interpretation.288 On international

law matters, the lawmaking process commonly is unstructured, multi-polar, and considerably

more opaque. It likewise involves a continuing and fluid relationship with foreign sovereigns

managed by the executive branch. The interpretive process itself is a multi-polar enterprise that

includes cooperation among systemically unrelated domestic courts.289

283 See supra notes __-__ and accompanying text.284 See supra notes __-__ and accompanying text.285 The same is true for those aspects of Congressional-Executive agreements that concern us

here. Recall that the special concerns about stare decisis arise where Congress incorporates the substance of a treaty into domestic law through an Article I process. See supra notes __-__ and accompanying text.

286 Professor John Yoo has advanced the extreme (and in my view misguided) opinion that the President has a “unilateral” power to interpret and reinterpret treaties. John Yoo, Politics as Law?: The Anti-Ballistic Missile Treaty, the Separation of Powers, and Treaty Interpretation, 89 CAL. L. REV. 851, 868 (2001). But see Michael P. Van Alstine, The Judicial Power and Treaty Delegation, 90 CAL. L. REV. 1263, 1275-80 (2002).

287 See Fourteen Diamond Rings v. United States, 183 U.S. 176, 180 (1901) (“The meaning of the treaty cannot be controlled by subsequent explanations of some of those who may have voted to ratify it.”).

288 See Eskridge, Overriding Statutory Decisions, supra note __, at 353-390.289 See supra notes __-__ and accompanying text.

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The instrumental argument that correction of judicial precedents should be left to

Congress as the original source of law thus loses its essential justification in this context. A

skeptic will respond to this substantive point with the formal argument that Congress nonetheless

is available to do so.290 On Article III international law, this formalistic point is unconvincing for

a variety of interrelated reasons.

290 William Eskridge has observed that Congress often is attentive to judicial decisions, although many actual “overrides” involve a change in the law by a modern Congress, not correction of judicial error. See Eskridge, Overriding Statutory Decisions, supra note __, at 335-353 (reviewing congressional overrides from 1967 through 1990).

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It is correct that on customary international law, the Constitution expressly authorizes

action by Congress as a whole.295 This, however, only serves to reinforce the point. Of its

nature, a precedent on such a matter involves judicial leadership in identifying the very existence

of the law.296 A robust version of stare decisis for judicial precedents imposes on Congress the

burden of overcoming the Constitution’s substantial procedural hurdles simply to assert its

rightful place as the preeminent lawmaker.

The lawmaking sequence for Article II treaties, to be sure, involves original approval by

the President and Senate. Even here, however, to say that Congress formally is available to

correct misguided judicial precedents does not mean that we should prefer such a constitutional

arrangement. The interpretation of a treaty in its essence is a judicial act.297 Congress may by

statute fully abrogate a treaty; but it is an entirely different thing to leave a treaty in place and

content ourselves with legislative processes for correction of judicial interpretive precedents.

Moreover, the general obstacles for the creation of federal law are amplified on matters

of international law. For domestic law purposes, a judicial precedent in the field represents a

formal declaration of the state of international law. Any congressional attempt to convey

displeasure with such a precedent runs into the dense web of clear statement rules that protects

international law from implicit legislative override.298 Even the limited openings the Supreme

Court has made for informal expressions of congressional preferences in statutory interpretation

295 See supra notes __-__ and accompanying text (examining the constitutional provisions that empower Congress to act on matters of international law).

296 See supra notes __-__ and accompanying text.297 See, e.g., Jones v. Meehan, 175 U.S. 1, 32 (1899)(“The construction of treaties is the peculiar

province of the judiciary[.”); Kolovrat v. Oregon, 366 U.S. 187, 194 (1961)(stating that “courts interpret treaties for themselves”).

298 See supra notes __-__ and accompanying text.

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inquiries,299 therefore, presumably would not apply for an international law precedent. To the

contrary, congressional inaction may be seen as supportive, as the Court indicated in Sosa v.

Alvarez-Machain.300

Finally, no effective mechanism exists to return to the lawmaking source to correct

judicial decisions on international law. The creation or revision of CIL, treaties, or executive

agreements requires the cooperation of sovereign entities beyond the reach of our polity. This

cooperation, moreover, is purely discretionary. As a result, the readjustment of a bi-lateral treaty

or executive agreement can be delicate, and is practically impossible for multilateral treaties and

customary international law.

299 Existing jurisprudence points in opposite directions on the influence of informal expressions of intent by a subsequent Congress. See Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143 (2000)(observing that “[o]ver time … subsequent acts can shape or focus th[e] meanings” of provisions in an earlier act because “[t]he ‘classic judicial task of reconciling many laws enacted over time, and getting them to ‘make sense’ in combination, necessarily assumes that the implications of a statute may be altered by the implications of a later statute’”)(quoting United States v. Fausto, 484 U.S. 439, 453 (1988)). But see United States v. Price, 361 U.S. 304, 313 (1960)“[T]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one”); Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 117-18 (1980)(same).

300 542 U.S. at 730-731 (citing congressional inaction in the face of lower court opinions that found a delegation of authority to hear tort claims in violation of international law).

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executive branch’s comparative institutional advantages counsel for a general judicial modesty in

foreign affairs matters. These expressions of respect for the executive branch’s superior

expertise also have condensed into formal doctrines with a direct impact on the province of the

courts.

There is little evidence that the Supreme Court defers to executive views on

constitutional allocations of power in foreign affairs, as recent opinions on the subject amply

demonstrate.301 But on subconstitutional foreign affairs law, modern doctrine holds that,

although not conclusive, executive branch views on the interpretation of treaties are entitled to

“great weight.”302 Similar sentiments should apply, although the quality of precedent is less

impressive, on the interpretation of customary rules of international law303 and presumably sole

executive agreements with foreign states as well.304

301 See supra notes __-__ and accompanying text.302 See, e.g., Abbott v. Abbott, __ U.S. __, 130 S.Ct. 1983, 1993 (2010); Medellin v. Texas, 552

U.S. 491, 513 (2008). See also Restatement of Foreign Relations, supra note __, § 326(2)(stating that courts “will give great weight” to executive treaty interpretations). The historical foundations for this approach are suspect, to say the least. See David Sloss, Judicial Deference to Executive Branch Treaty Interpretations: A Historical Perspective, 62 N.Y.U. ANN. SURV. AM. L. 497 (2007) (demonstrating that in the first fifty years of the Constitution the Supreme Court afforded little or no deference to executive branch treaty interpretations); Robert Chesney, Disaggregating Deference: The Judicial Power and Executive Treaty Interpretations, 92 IOWA L. REV. 1723 (2007)(reviewing the rise of such deference in the early twentieth century).

303 See Restatement of Foreign Relations, supra note __, § 112, cmt. c (stating that courts will give “substantial respect” to the views of the executive branch on questions of international law). Substantial scholarly controversy exists over whether the President is bound by customary international law at all. For an introduction to the debates compare Michael J. Glennon, Raising The Paquete Habana: Is Violation of Customary International Law by the Executive Unconstitutional?, 80 Nw. U. L. Rev. 321, 325 (1985) and Jordan J. Paust, The President Is Bound by International Law, 81 Am. J. Int’l L. 377, 378 (1987) with Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 844-846 (1997)(arguing that customary international law is not part of the federal common law and thus does not bind the president) and Arthur M. Weisburd, The Executive Branch and International Law, 41 VAND. L. REV. 1205, 1207 (1988). See also Louis Henkin, The President and International Law, 80 AM. J. INT’L L. 930, 936 (1986)(arguing that the President may disregard customary international law for purposes of United States law only within his exclusive constitutional powers).

304 Restatement of Foreign Relations, supra note __, § 326(2)(extending the deference doctrine to all “international agreements” concluded by the executive branch). See also Air Canada v. U.S. Dept. of Transp., 843 F.2d 1483, 1486-1487 (D.C. Cir. 1988)(observing that an executive branch interpretation of

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The sum of these doctrines is substantial deference to executive branch views on the very

content of international law. Scholars have even variously described the proposition as “super-

deference”305 and as reflective of a constitutional scheme of “shared” interpretive authority.306

The historical record of actual outcomes is uneven, although the weight of evidence points to

considerable deference to executive views, in particular on the interpretation of treaties.307

Even with these cautions, judicial precedent on international law has a potential for

continuing tensions not present in purely domestic law. The President does not have the

authority to override or disregard a final judicial declaration on binding norms of international

law.308 This alone carries important “collateral consequences” for the prerogatives of the

executive in foreign relations.309 Adjustment at the international level also is difficult and often

impossible. The executive branch cannot compel a renegotiation of a treaty or executive

agreement, and certainly cannot alone change customary international law. The executive

an executive agreement is likewise entitled to deference).305 See William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court

Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083, 1100-1102 (2008). See also id., at 1098 (referring to “super-strong deference” in foreign affairs matters generally).

306 See Michael Stokes Paulsen, The Constitutional Power to Interpret International Law, 118 YALE L.J. 1762, 1793-1794 (2009).

307 See David J. Bederman, Revivalist Canons and Treaty Interpretation, 41 UCLA L. REV. 953, 1015 (1994)(canvassing the treaty interpretation cases of the Rehnquist Court at the time and concluding that “in all but one the holding followed the express wishes of the executive branch of the government”). MORE CITATIONS

308 See Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792) (observing that “by the Constitution” executive officers are not “authorized to sit as a court of errors on … judicial acts or opinions”)(quoting the Court of Appeals); Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948)(declaring the judgments within the authority of federal courts “may not lawfully be revised, overturned or refused faith and credit by another Department of Government”).

309 See Sosa v. Alvarez-Machain, 542 U.S. 692, 731 (2004)(emphasizing that the “collateral consequences” of recognizing domestically enforceable torts in violation of international law “should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs”); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 432-433 (1964)(noting that “[w]hen articulating principles of international law in its relations with other states, the Executive Branch speaks not only as an interpreter of generally accepted and traditional rules, as would the courts, but also as an advocate of standards it believes desirable for the community of nations and protective of national concerns.”)

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nonetheless has a continuing obligation to manage our relations with foreign states within the

bounds of the law. The consequence of all of this is that a judicial ruling on our nation’s

obligations under international law (or reciprocal obligations of foreign states) carries special

risks of compromising the need for a “single-voiced statement” in foreign affairs.310

But here again, we return to a familiar theme: The concerns that animate ex ante

deference to the executive on matters of international law do not evaporate once a court in fact

creates a precedent. Indeed, the executive’s continuing conduct of foreign relations—practical

performance of treaty obligations,311 state practice on customary international law312—may have a

direct influence on the content of the law notwithstanding a “final” international law precedent.

The theme here as well is that exogenous forces of change, in this case arising from legitimate

executive branch actions in the external realm, may rapidly erode the foundations of a precedent.

A rigid version of stare decisis precludes ex post consideration of all of these distinctive factors

in foreign affairs.

There is nothing unusual or particularly problematic about judicial flexibility in a field

special executive authority. The Supreme Court’s analysis in Brand X Internet Services313

illustrates the point. At issue there was the status of an administrative agency’s interpretation of

a statute subsequent to a contrary interpretation by a federal court of appeals.314 The Supreme

Court held, in application of the Chevron doctrine,315 that stare decisis principles do not preclude

310 See Baker v. Carr, 369 U.S. 186, 211-212 (1962).311 See supra notes __-__ and accompanying text.312 See supra notes __-__ and accompanying text.313 National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967

(2005).314 Id., at 982.315 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See

also Brand X, 545 U.S. at 980 (observing that “[i]n Chevron, this Court held that ambiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory

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recognition of a subsequent agency interpretation if reasonable and within the scope of its

delegated authority.316

gap in reasonable fashion”).316 Id., at 983 (holding that “[n]either Chevron nor the doctrine of stare decisis” “preclude[s]

agencies from revising unwise judicial constructions of ambiguous statutes”).

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majorities in both houses, to displace a particular act of instinctive judicial deference would face

an expected presidential veto and the near impossibility of an override by the required two-thirds

majority.

The “province and duty of the judicial department to say what the law is”319, in short,

extends as well to Article III international law. The proper response to unease over trenching on

presidential prerogatives in foreign affairs is not to surrender this essential judicial function to

the executive branch. On the other hand, the sheer volume of cases in the lower federal courts

commonly will not permit consideration of executive views at all. The solution, as I will explain

in the final section below, is a more accommodating understanding of stare decisis. This

flexibility is fully consistent with the values that animate the doctrine, but also is appropriately

sensitive to the judiciary’s special institutional station for Article III international law.

IV. THE ARGUMENT DISTILLED: INTEGRATING STARE DECISIS AND FOREIGN AFFAIRS

A. “Special Justifications” and Article III International Law

Stare decisis does not admit of clean categories. It is a prudential doctrine animated by

pragmatic impulses about stability and system integrity. The force of a given precedent

ultimately involves weighing these systemic values against situation-specific counter-values

founded in its original and continuing validity. In the end, the doctrine functions as a simple

preference for finality. As I will explore below, however, the courts should relax that preference

where other recognized contextual or institutional values undermine its premises in a particular

field of endeavor or otherwise counsel for judicial modesty in the first place.

The analysis above does not call into question the stare decisis principles that now obtain

for purely domestic statutes.320 Where a statute defines the entire content of the law, any

319 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).320 See supra notes __-__ and accompanying text.

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implications for foreign affairs result from the value judgments first made by Congress within its

constitutionally delegated authority. In such a case, interpretation by the courts will involve

traditional domestic source materials and relationships. Moreover, as a matter of purely

domestic law, all forces of legal change should be endogenous to the system and thus within the

final judicial authority of the Supreme Court. Finally, fidelity to congressional values judgments

should avoid the fact and appearance of independent judicial agency in foreign affairs

lawmaking.

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message into practical operation, the courts should explicitly recognize the force of these special

considerations for precedents in this field.

Careful reflection reveals that this perspective is consistent with many general threads

that already exist in stare decisis doctrine. Extant jurisprudence recognizes that subsequent

factual and legal events may undermine a precedent.322 In Article III international law, this

phenomenon is simply more immediate and consequential. In a separate vein, some persuasive

observations of the Supreme Court suggest that a less rigorous standard should apply when the

courts take the lead in lawmaking, such as on “judge-made” procedural rules.323 The Court

likewise has declared that stare decisis is “not as significant” for federal common law created on

the basis of an implied statutory delegation (such as in the Sherman Act).324

The lock-in effects of precedent also are particularly problematic for Article III

international law. Judicial error involves enlarging,325 or impermissibly narrowing,326 the rights

or obligations that govern our nation’s legal relations with foreign states. And as we have seen,

the practical hurdles to an override by the political branches are considerable. The one

322 See supra notes __-__ and accompanying text.323 See, e.g., Pearson v. Callahan, __ U.S. __, 129 S.Ct. 808, 816-817 (2009)(rejecting application

of “the general presumption that legislative changes should be left to Congress” with respect to “judge made” procedural rules); Morse v. Frederick, 551 U.S. 393, (2007)(Breyer, J., concurring in part and dissenting in part)(observing that in the case of “a judge-made procedural rule, stare decisis concerns supporting preservation … are weak”); Payne v. Tennessee, 501 U.S. 808, 828 (1991)(contrasting the strong stare decisis effect for property and contract rights with cases “involving procedural and evidentiary rules” where “the opposite is true”).

324 Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877, 899 (2007)(stating that “stare decisis is not as significant” for the Sherman Act because “[f]rom the beginning the Court has treated the Sherman Act as a common-law statute”). As William Eskridge has explained, the rationale for this approach is that where Congress has delegated lawmaking discretion through such statutes, the courts “should also be given leeway to experiment and overrule prior interpretations in a common law fashion.” See Eskridge, Overruling Precedents, supra note __, at 1377-1378.

325 See Sanchez-Llamas, 548 U.S. at 346 (observing that to create a particular remedy beyond a convention’s terms “would in effect be supplementing those terms by enlarging the obligations of the United States under the Convention”).

326 See Van Alstine, Good Faith, supra note __, at 925-928.

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recognized categorical distinction in stare decisis jurisprudence justifies a weaker version for

constitutional matters precisely because of the difficulty of override by other constitutional

institutions.327 A more relaxed understanding of precedent on Article III international law would

accommodate these special institutional considerations. It would enable (but not require) the

courts to reexamine the propriety of their initial leadership and to consider even informal

expressions of intent by Congress and the President in the future.

Of course, not all matters of international law are infected with uncertainty. One might

think here of an unambiguous provision in a bilateral treaty that finds consistent support in

secondary interpretive materials. In such cases, the values of stability and predictability will

continue to counsel for adherence to precedent. In additional, not all judicial decisions in the

field will tread on the prerogatives of the political branches equally.328 As well, a consensus may

coalesce even on delicate and ambiguous issues through the accumulation of experience and

consistent judicial interpretation over time.

This suggests as a guide the civil law notion of jurisprudence constant (or its German

cousin, ständige Rechtsprechung). The idea here is that, even without a formal doctrine of stare

decisis, courts should defer to a rule of law that they have consistently accepted and applied in

prior cases, absent compelling reasons to the contrary.329 The parallel to our own notion of stare

decisis is apparent; but the significant difference is that respect for precedent does not attach to

the first judicial intuition on a subject; rather, it arises from reaffirmed insights and experience

over time. And, significantly, it is decisively informed by a respect for the lawmaking

327 See also Martinez, supra note __, at 486 (suggesting a similar point).328 See supra notes __-__ and accompanying text.329 See In re Whitaker Const. Co., Inc., 439 F.3d 212, 224 n.12 (5th Cir. 2006)(describing this rule

in Louisiana civil law); Songbyrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, 776 (5th Cir. 1997) (same).

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prerogatives of the legislature, and thus by the principle that judges fundamentally are law-

finders, not lawmakers.330

330 See Zenon Bankowski, et al, Rationales for Precedent, __ in INTERPRETING PRECEDENTS, supra note __.

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Modesty and flexibility in this sense thus are empowering. An express recognition of the

special considerations that affect the authority of precedents on Article III international law

would empower the courts to make independent decisions through a flexibility that permits (but

does not require) reexamination of the foundations and consequences of its actions in such an

important field. In short, the flexibility advocated here reserves to the courts their field of

institutional expertise, leaves room for appropriate executive branch influence, and does not

force on the legislative branch a task of interpretation for which it is ill-suited.

B. Local Courts, International Obligations: The Special Demands forStare Decisis Modesty in the Federal Courts of Appeal

It is a curious fact the Framers structured the Constitution precisely to protect against

divergent interpretations of our nation’s international legal obligations by the separate state

courts,333 but that the vast bulk of this work is now done by independent and geographically

dispersed federal courts. The Supreme Court itself has repeatedly emphasized the demand for

national uniformity in this field.334 But as Justice Scalia caustically observed in 2004 with

specific reference to international law, “the lower federal courts [are] the principal actors; we

review but a tiny fraction of their decisions.”335 The facts amply bear this out. Over 99% of the

333 The leading case on this point is Martin v. Hunter’s Lessee. 14 U.S. 304 (1816). There, the Supreme Court emphatically declared that its treaty interpretation decisions are binding on state courts. Id., at 347-60.

334 See, e.g., Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 448 (1979)(observing that “federal uniformity is essential” in foreign commerce); Hines v. Davidowitz, 312 U.S. 52, 63 (1941)(declaring that national interests “imperatively require[] that federal power in the field affecting foreign relations be left entirely free from local interference”)(quoting The Chinese Exclusion Cases, 130 U.S. 581, 606 (1889)).

335 Sosa v. Alvarez-Machain, 542 U.S. 692, 750-751 (2004) (Scalia, J., concurring).

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