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The Death Of Good Faith In Treaty Jurisprudence And A Call For Resurrection, Michael P. Van Alstine
The Death Of Good Faith In Treaty Jurisprudence And A Call For Resurrection, Michael P. Van Alstine
Michael P. Van Alstine
This article addresses the absence of the venerable doctrine of good faith interpretation, as well as its companion “liberal interpretation canon,” from modern Supreme Court treaty jurisprudence. Although scholarly accounts suggest that the spirit is still alive, the article demonstrates that the doctrine was silently interred by the Supreme Court early in the last century. From all appearances, the disappearance of good faith from treaty jurisprudence was not by design. Nonetheless, the article demonstrates that even such an unintended drift can have serious negative consequences. In the context of treaty jurisprudence, the consequence of the departure of good faith interpretation …
Federal Common Law In An Age Of Treaties, Michael P. Van Alstine
Federal Common Law In An Age Of Treaties, Michael P. Van Alstine
Michael P. Van Alstine
In this article Professor Van Alstine explores the interaction between the limitations on the doctrine of federal common law and the power of federal courts to interpret the law within the scope of treaties. The article first reviews the constitutional foundation for the operation of treaties as directly applicable ("self-executing") federal law. It then explains that, notwithstanding the Erie doctrine, federal courts may obtain lawmaking powers from either a delegation by Congress or in certain areas of "uniquely federal interest." Professor Van Alstine then argues that the judicial relationship with self-executing treaty law in principle proceeds from the same source …