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Full-Text Articles in Jurisprudence
A Realist Defense Of The Alien Tort Statute, Robert Knowles
A Realist Defense Of The Alien Tort Statute, Robert Knowles
Law Faculty Publications
This Article offers a new justification for modern litigation under the Alien Tort Statute (ATS), a provision from the 1789 Judiciary Act that permits victims of human rights violations anywhere in the world to sue tortfeasors in U.S. courts. The ATS, moribund for nearly 200 years, has recently emerged as an important but controversial tool for the enforcement of human rights norms. “Realist” critics contend that ATS litigation exasperates U.S. allies and rivals, weakens efforts to combat terrorism, and threatens U.S. sovereignty by importing into our jurisprudence undemocratic international law norms. Defenders of the statute, largely because they do not …
Fundamental Norms, International Law, And The Extraterritorial Constitution, Jules Lobel
Fundamental Norms, International Law, And The Extraterritorial Constitution, Jules Lobel
Articles
The Supreme Court, in Boumediene v. Bush, decisively rejected the Bush Administration's argument that the Constitution does not apply to aliens detained by the United States government abroad. However, the functional, practicality focused test articulated in Boumediene to determine when the constitution applies extraterritorially is in considerable tension with the fundamental norms jurisprudence that underlies and pervades the Court’s opinion. This Article seeks to reintegrate Boumediene's fundamental norms jurisprudence into its functional test, arguing that the functional test for extraterritorial application of habeas rights should be informed by fundamental norms of international law. The Article argues that utilizing international law’s …