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Full-Text Articles in Law
General Law In Federal Court, Bradford R. Clark, Anthony J. Bellia Jr.
General Law In Federal Court, Bradford R. Clark, Anthony J. Bellia Jr.
GW Law Faculty Publications & Other Works
Conventional wisdom maintains that the Supreme Court banished general law from federal courts in 1938 in Erie Railroad Co. v. Tompkins when the Court overruled Swift v. Tyson. The narrative asserts that Swift viewed the common law as a “brooding omnipresence,” and authorized federal courts to disregard state common law in favor of general common law of their own choosing. The narrative continues that Erie constrained such judicial lawmaking by banishing general law from federal courts. Contrary to this account, Swift and Erie represent compatible conceptions of federal judicial power when each decision is understood in historical context. At the …
The Law Of Nations As Constitutional Law, Bradford R. Clark, Anthony J. Bellia Jr.
The Law Of Nations As Constitutional Law, Bradford R. Clark, Anthony J. Bellia Jr.
GW Law Faculty Publications & Other Works
Courts and scholars continue to debate the status of customary international law in U.S. courts, but have paid insufficient attention to the role that such law plays in interpreting and upholding several specific provisions of the Constitution. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach adequately takes account of the Constitution’s allocation of powers to the federal political branches in Articles I and II or the effect of these …
The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.
The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.
GW Law Faculty Publications & Other Works
Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts... shall... have cognizance... of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries until, in the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for violations of modern customary international law that occurred outside the United States. In 2004 …