From John Jay to John Roberts: The Law of Nations in U.S. Courts
On August 24th, 2021, the Washington Foreign Law Society hosted a webinar entitled "From John Jay to John Roberts: The Law of Nations in U.S. Courts", with Mark Feldman and Thomas Lee, and moderated by Michael Teodori.
The program - which followed the Society's May 12th event on international human rights in the Supreme Court - sought to take a historical look at how customary international law has been dealt with by US courts, moving from the Supreme Court's recent decision in Nestlé v. Doe, and considering possible repercussions on the Alien Torts Statute.
The Society wishes to thank Prof. Feldman and Prof. Lee for their outstanding contribution and lively discussion.
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Below is a list of cases and materials prepared by the panelists before the webinar in support of their remarks:
Bas v Tingy, 4 U.S. 37 (1800) Moore, Washington, Chase JJ (what is “war”?)
Murray v Schooner Charming Betsy, 6. U.S. (2 Cranch) 64 (1804) (“[A]n Act of congress ought never to be construed to violate the law of nations if any other possible construction remains.”)
The Schooner Exchange v McFaddon, 11 U.S. (7 Cranch) 116 (1812) Marshal, J.
(foreign state immunity)
Holmes v Jennison, 39 U.S. (14 Pet) 540 (1840) Taney C.J. (citing Vatell re compacts/treaties)
The Prize Cases, 67 U.S. 635 (1863) Grier, J. (Lincoln’s blockade Southern ports)
Chinese Exclusion Case (Chae Chan Ping v United States), 130 U.S. 581 (1889)
Field, J. (federal immigration power)
The Paquete Habana, 175 U.S. 677 (1900) Gray, J. (international law = part of our law)
United States v Belmont, 301 U.S. 324 (1937) Sutherland, J. (Executive agreement preempts state law)
Banco Nacional de Cuba v Sabbatino, 376 U.S. 398 (1964) Harlan, J. (Erie v Tompkins does not apply to U.S. common law of foreign relations)
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) Souter, J. (ATS is a jurisdictional statute allowing U.S. courts to apply a limited number of international law rules that are clearly defined and widely accepted).
Hamdi v Rumsfeld, 542 U.S. 507 (2004) O’Connor, J. (Right to detain American national captured on battlefield based on international rules of war subsumed in 2001 AUMF)
Roper v. Simmons, 543 U.S. 551 (2005) Kennedy, J. (Eighth Amendment)
Samantar v Yousuf, 560 U.S. 305 (2010) Stevens, J. (foreign official immunity)
Zivotofsky v. Kerry, 135 S.Ct. 2076 (2015) Kennedy, J. (Article II gives President all the powers traditionally used to grant recognition in international practice)
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Professor Lee has written several articles on this subject:
Thomas H. Lee, The Law of Nations and the Judicial Branch, 106 Georgetown L. J. 1707 (2018)
https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=336243
Thomas H. Lee, International Law and U.S. Judicial Power, in Stephan and Cleveland, eds, The Fourth Restatement and Beyond(Oxford 2020)
