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Full-Text Articles in Law
The Future Of The Federal Common Law Of Foreign Relations, Ingrid Wuerth
The Future Of The Federal Common Law Of Foreign Relations, Ingrid Wuerth
Vanderbilt Law School Faculty Publications
The federal common law of foreign relations has been in decline for decades. The field was built in part on the claim that customary international law is federal common law and in part on the claim that federal judges should displace state law when they conclude that it poses difficulties for U.S. foreign relations. Today, however, customary international law is generally applied based upon the implied intentions of Congress, rather than its free-standing status as federal common law, and judicial evaluation of foreign policy problems has largely been replaced by reliance upon presidential or congressional action, or by standard constitutional …
Customary International Law, Ingrid Wuerth, Laurence R. Helfer
Customary International Law, Ingrid Wuerth, Laurence R. Helfer
Vanderbilt Law School Faculty Publications
Contemporary international lawmaking is characterized by a rapid growth of “soft law” instruments. Interdisciplinary studies have followed suit, purporting to frame the key question states face as a choice between soft and “hard” law. But this literature focuses on only one form of hard law — treaties — and cooperation through formal institutions. Customary international law (CIL) is barely mentioned. Other scholars dismiss CIL as increasingly irrelevant or even obsolete. Missing from these debates is any consideration of whether and when states might prefer custom over treaties or soft law. This article applies an instrument choice perspective to demonstrate custom’s …
The Supreme Court And The Alien Tort Statute: Kiobel V. Royal Dutch Petroleum Co., Ingrid W. Brunk
The Supreme Court And The Alien Tort Statute: Kiobel V. Royal Dutch Petroleum Co., Ingrid W. Brunk
Vanderbilt Law School Faculty Publications
Alien Tort Statute litigation has generated a growing number of questions about the the scope of statute, but in Kiobel v. Royal Dutch Petroleum Co. the Supreme Court finally answered one of them: the presumption against extraterritoriality applies to the statute. Going forward, courts may apply a robust version of the presumption, effectively ending ATS litigation as we currently know it. Or, they may not. The Court’s citations to Morrison v. Nat’l Austl. Bank Ltd. suggest the former; some language in the various opinions suggests the latter. This article explores these uncertainties and also discusses additional factors that may be …