February 2006

Outsourcing of American Law

In the past year, there has been serious debate over the role that international and foreign law should play in American judicial decision-making. Are there circumstances under which international and foreign law can trump the U.S. Constitution? How do we define sovereignty in the age of the war on terrorism? Is U.S. reliance on international law a double-edged sword? In order to understand recent developments in the relationship among international, foreign, and domestic law and the implications of this debate for American citizens, AEI hosted a February 21 conference on the outsourcing of American law.

Introduction

Jack Goldsmith
AEI and Harvard Law

There are many ways in which American law can be outsourced. For example, trade entities like the WTO and NAFTA establish international organizations that review the legality of U.S. law within the parameters of international law. International law has two sources: treaties and customary international law, which refers to the customary practices of states that are followed out of a sense of legal obligation. It is more fluid and less certain than treaty law. Nonetheless, U.S. courts have increasingly applied it, especially in the context of alien tort statutes. The first wave of cases dealt with aliens suing aliens for human rights violations committed abroad, but it has evolved to deal with the actions of U.S. corporations abroad, and even the executive branch of the U.S. government’s actions abroad. But, the content of customary international law is increasingly determined by non-American actors. Judges are beginning to rely on foreign and international law in their interpretations of the Constitution.

Panel I: Looking Abroad for Law? Customary International Law and the Alien Tort Statute

William Dodge
University of California, Hastings College of the Law

One can observe three waves of alien tort litigation. The first wave during the 1980s featured cases of aliens suing other aliens for grave human rights abuses committed abroad. The second wave, during the 1990s, featured cases where individuals sought to hold corporations accountable for either primary or vicarious liability in committing human rights abuses. Currently, the third wave features claims against the U.S. government. The case of Sosa vs. Alvarez-Machain arose before 9/11 but carried large implications for the war on terror because it suggested that government officials might be liable in civil claims for their actions. The Bush administration, challenging this case before the Supreme Court, argued that the Court should not hear suits under the Alien Tort Statute unless Congress granted express cause of action, which is granted in the United States for torture and extrajudicial killings alone. The Bush administration chose the argument with the broadest impact, but this approach proved to be a poor strategic decision because the argument also had the weakest historical basis. When the Alien Tort Statute passed, the law of nations was considered to be part of the general tort law.

There are three implications stemming from Sosa. First, the argument that customary international law is only federal common law for alien tort statute purposes is dead. Second, Sosa begins with a historical understanding of alien tort law but also considers modern developments. Third, customary international law is not federal law for all purposes; the courts will look at its place in the domestic system on an issue-by-issue basis. The law of the United States includes the laws of nations, as the Founders intended.

Julian Ku
Hofstra University School of Law

The president has the constitutional power to issue interpretations of customary international law that are binding on federal courts, at least in cases brought under the alien tort statute. Although this view has not been adopted by any court or by the executive, the current administration should consider developing this theory. Post-Sosa, federal courts can still recognize innovative norms of international law without taking into account the foreign policy interests of the United States. However, the executive has the legal authority to assert a more aggressive role in the interpretations of customary international law.

There is no obvious originalist answer to the question of customary international law in the context of alien tort statutes, but the structure of the Constitution allocates the power to interpret customary international law to the president, not to the courts. That said, the president does not get the last word. Congress can overrule the president, but such power is rarely exercised and, when exercised, it is almost always done secondarily. There is no obvious politically legitimizing authority regarding the status of customary international law; therefore, it makes the most sense for the president to have broader control since the president has the position of primacy in the conduct of foreign affairs.

David Moore
University of Kentucky College of Law

Sosa has been widely misread. Pre-Sosa, the majority position was that customary international law was federal law that could be immediately applied by federal courts. Post-Sosa, most believe that the courts still have the right to exercise customary international law as federal common law, but this interpretation is wrong. The Supreme Court decision focussed on Congressional intent and imposed limitations on the federal judiciary if it chooses to cite customary international law in a decision. The Court agreed that Congress intended for the tort statute to have some immediate application, but it split on what the role of the courts should be.

Sosa decided that the courts should look to Congress for interpretations before making decisions on substantive law. The Court said that federal courts need to exercise restraint because Congress and the executive branch need to take the lead in foreign affairs. It decided that courts should have some authority because of Congressional intent at the time the alien tort statute was introduced, but it imposed certain limitations. The customary international law must be specific and accepted to prevent courts from exercising discretions beyond what the original Congress conceived.

Beth Stephens
Rutgers School of Law

Sosa decided that federal courts have the power to recognize customary international law causes of action because it is part of domestic law, as Congress intended. It rejected that courts only have the power to apply customary international law in cases where Congress allows it to. Moreover, the executive argued for monopoly power over interpretation and was also rejected. The Court did not ignore foreign policy concerns, as evidenced by the fact that it warned the courts to be careful when interpreting customary international law. If courts defer entirely to the executive, they abdicate their constitutional role. The judiciary’s role is not anti-democratic because it acts as a neutral forum in which those with less power in the political system can have their grievances addressed.

Corporate liabilities fall within the parameters of Sosa. The Framers held that private actors could be liable; when they aid in human rights abuses, they have a legal relationship with the crimes committed. There is no basis for distinction between private individuals and corporations in terms of liability for human rights abuses.

Panel II: Law and War--The War on Terrorism and International Law

Kenneth Anderson
Washington College of Law, American University

The war on terror will not outlast the current administration unless Congressional legislation institutionalizes it. Numerous issues abound without legal regulation, including intelligence collection, surveillance, detention and rendition, interrogation and torture, and the use of force. The executive cannot have the inherent authority to go on with this policy for much longer. Future administrations, Democrat or Republican, will not hold on to the war on terror unless it is institutionalized.

Morton Halperin
Open Society Institute, Center for American Progress

The long struggle of the war on terror requires the cooperation of the American people, Congress, the courts, and even other countries. Power alone is not fundamentally enough to act. New standard procedures are necessary for detaining members of al-Qaeda on the battlefield and other places. Both domestic criminal law and international law are insufficient. Congress can provide administrative review, determine court procedures, and set standards. Only this will facilitate the cooperation of other countries.

John Hutson
Franklin Pierce Law Center, U.S. Navy

It is possible for the United States to lose the war on terror. What is winning if we lose our souls in the process? This is not the last war, and we must be able to save ourselves to fight again. Coalitions are more difficult if our allies cannot predict or rely on U.S. conduct. Conduct must be institutionalized.

Andrew McCarthy
Foundation for the Defense of Democracies

A new paradigm is required for how to think about the war on terror and enforcement on the home front. We need to resolve basic tensions between the primacy of national security implications over due process; national solutions over international; political solutions over judicial; and between of war over criminal problems. There is no risk of losing our soul through the malfeasance of war, nor is war a postponement of time and space until a political solution is found. International law and law of war have polar opposite understandings of nature. Consent is necessary for international law. This consensus does not exist, and nor does consensus about intelligence versus due process. Legal standards cannot compromise war.

Keynote Address

The Honorable Antonin Scalia
U.S. Supreme Court

In general, the courts should look unfavorably on using foreign law to form judicial opinion. Notwithstanding this, there are three cases in which judges might consult foreign law: First, foreign law can serve as a basis of comparison regarding the possible outcome of decisions decided in the United States that have already been decided elsewhere. Second, one should use foreign law when it is alleged in the particular case that an alleged crime in another nation occurred in violation of that foreign nation’s laws. Third, foreign laws should inform domestic legislation when that legislation is derived from U.S. treaty obligations. While foreign law certainly informed America’s Founders at the time of the writing of the Constitution, modern foreign law is not relevant to present-day interpretation of the Constitution. One can consult foreign law though when the Constitution or statute specifically refers to foreign law.

The use of foreign law in constitutional interpretation will unfortunately accelerate in the coming years for three reasons: There are many “living constitutionalists” who believe it is necessary to keep the Constitution up to date with evolving standards of progress. As these living constitutionalists’ desires for updating the Constitution are frustrated, they will increasingly turn to foreign law to advance their positions. Further, these living constitutionalists believe that there exists a core human rights law for all humanity that supersedes common law and from which all judges should be able to draw. While one may believe that there is a natural, human rights law for all humanity that includes absolute moral right and wrong, right and wrong differs greatly between different people. Thus, this type of human rights law cannot be the basis of American constitutional interpretation.

There will also be greater use of foreign law by those who seek to advance their positions using foreign law precedents instead of logical reasoning. Justices will invoke foreign law in order to afford themselves more leeway in forming their decisions. Finally, it is important to note that America’s Founders expressly did not wish to follow foreign law and legal systems, aspects of which they found to be entirely unreasonable. And, it is undemocratic for justices to decide which foreign laws are right and are to be applied and which foreign laws are wrong and should not be applied.

Panel III: Outsourcing Constitutional Law? International and Foreign Law and the U.S. Supreme Court

Peter Berkowitz
George Mason University Law School and the Hoover Institution

It is important to discuss why there is a surge in the use of foreign law in U.S. courts. This phenomenon derives from the stymieing of the progressive agenda of proponents of the work of the Warren Court by the Supreme Court appointees of the Reagan administration. Seeking to promote their agenda after this point, advocates of progressive outcomes were forced to look to foreign law to further their views.

Following the end of the Cold War and the arrival of the Information Age, there has been a greater globalization of contacts between law academics and practitioners. There are justices who believe that the Court should use foreign laws when possible to promote “active democracy”--that is, progressive politics.

It is problematic to use foreign law without taking into account the circumstances surrounding the passage, implementation, and enforcement of this law. However, there are cases in which the Court should consult foreign law, most notably in the case of deciding Eighth Amendment standards of “cruel and unusual” punishment. 
 
Stuart Taylor
National Journal, Newsweek, and the Brookings Institution

It is generally bad practice to use foreign law when deciding U.S. constitutional and statutory matters. Cases where it should be used appropriately include: sharing the implications of a law as illustrated though a foreign nation’s application of a similar law, enhancing the persuasiveness of an opinion decided by the Court to the public and media, and giving decent deference to the thinking of mankind by citing foreign opinions. Justices can further use foreign law in cases in which there is no public consensus in the United States on the issue. One must note, however, that justices who use foreign law to back their legal arguments risk discrediting their opinions in the eyes of the American public.

Thomas Goldstein
Goldstein and Howe, P.C.
 
The role of foreign law in interpreting the Constitution is greatly overstated. In essence, the debate over using foreign law is a proxy for the debate over originalism. As such, it is the debate over whether foreign courts face the same questions as American courts face and whether or not foreign courts are attempting to define human liberty as are American courts.

Foreign justices are indeed confronting the same issues as American justices in the case of invidious discrimination, whether discrimination against the mentally handicapped or homosexuals or others. Finally it is important to note that when forming their opinions, American justices routinely consult law reviews and other publications to determine if these publications are confronting the same issues as the justices are facing. For this reason, then, if the Court can determine that foreign law is confronting the same issues, then the Court should use this law in the same manner as it uses academic publications to form justices’ opinions.
 
John Yoo
AEI, University of California-Berkeley Boalt Hall School of Law

The importance of the subject of the use of foreign law in judicial interpretation is underscored by the fact that justices and judicial nominees continue to talk at length about the subject. In many ways, this could be a debate over how to interpret the Constitution. Indeed, if this is so, the debate is over whether or not America, for example, is in sync with the social, economic, and political policies of Europe. And if the United States is not, should the courts attempt to bring them closer together? However, taking note of history, one sees that the American and European political, social, economic, and legal systems have traditionally diverged greatly in many areas.

But perhaps this debate over the use of foreign law in judicial interpretation is really an international relations issue. In this conception, Europe, for example, desires greater application of international law in order to constrain U.S. power; the United States, on the other hand, opposes such constraints. One must ask, then, if this matter is really one which the Courts should decide. Or, perhaps it is better to let Congress or the president decide the foreign policy implications of following international norms to a greater or lesser extent.

This summary was prepared by AEI interns Colin Kelly, David Ribner, and Daniel Kaplow.