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International Law in the U.S. Supreme Court

International Law in the U.S. Supreme Court Continuity and Change

Author: David L. Sloss; Michael D. Ramsey; William S. Dodge
Publisher: Cambridge University Press
ISBN: 9781107668751
Published In: August 2012
Format: Paperback , 654 pages
Jurisdiction: U.S. ? Disclaimer:
Countri(es) stated herein are used as reference only

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From its earliest decisions in the 1790s, the U.S. Supreme Court has used international law to help resolve major legal controversies. This book presents a comprehensive account of the Supreme Court's use of international law from its inception to the present day. Addressing treaties, the direct application of customary international law and the use of international law as an interpretive tool, this book examines all the cases or lines of cases in which international law has played a material role, showing how the Court's treatment of international law both changed and remained consistent over the period. Although there was substantial continuity in the Supreme Court's international law doctrine through the end of the nineteenth century, the past century has been a time of tremendous doctrinal change. Few aspects of the Court's international law doctrine remain the same in the twenty-first century as they were two hundred years ago.

• The only book to give a comprehensive account of the U.S. Supreme Court's use of international law over two centuries of Supreme Court history

• Provides an account of what changed in the U.S. Supreme Court's international law doctrines and when those changes occurred

List of Contributors	xi
Table of Cases	xix
Acknowledgments	xxxv
Introduction	1
Part I From the Founding to the Civil War
1 International Law in the Supreme Court to 1860 David L. Sloss, Michael D. Ramsey, and William S. Dodge	7
Part II From the Civil War to the Turn of the Century
2 Treaties in the Supreme Court, 1861–1900 Duncan B. Hollis	55
3 Customary International Law in the Supreme Court, 1861–1900 David J. Bederman	89
4 International Law as an Interpretive Tool in the Supreme Court, 1861–1900 Thomas H. Lee and David L. Sloss	124
5 A Social History of International Law: Historical Commentary, 1861–1900 John Fabian Witt	164
Part III From the Turn of the Century to World War II
6 Treaties in the Supreme Court, 1901–1945 Michael P. Van Alstine	191
7 Customary International Law in the Supreme Court, 1901–1945 Michael D. Ramsey	225
8 International Law as an Interpretive Tool in the Supreme Court, 1901–1945 Roger P. Alford	257
9 Varieties and Complexities of Doctrinal Change: Historical Commentary, 1901–1945 Edward A. Purcell, Jr.	285
Part IV From World War II to the New Millennium
10 Treaties in the Supreme Court, 1946–2000 Paul B. Stephan	317
11 Customary International Law in the Supreme Court, 1946–2000 William S. Dodge	353
12 International Law as an Interpretive Tool in the Supreme Court, 1946–2000 Melissa A. Waters	380
13 Global Power in an Age of Rights: Historical Commentary, 1946–2000 Martin S. Flaherty	416
Part V International Law in the U.S. Supreme Court in the Twenty-First Century
V.A Treaties after 2000
Main Essay – Medellin and Sanchez-Llamas: Treaties from John Jay to John Roberts Lori F. Damrosch	451
Response Essay – The Benefits of Avoiding Conflicts between the Constitution and International Law Julian Ku	465
Response Essay – Medellin and the Passive Vices David L. Sloss	472
V.B Customary International Law after 2000
Main Essay – Sosa and the Derivation of Customary International Law John O. McGinnis	481
Response Essay – “Cheap Talk” about Customary International Law Chimène I. Keitner	494
Response Essay – History, Ideology, and Erie v. Tompkins Edward A. Purcell, Jr.	499
V.C International Law and Constitutional Interpretation after 2000
Main Essay – International Law and Constitutional Interpretation in the Twenty-First Century: Change and Continuity Mark Tushnet	507
Response Essay – Why Constitutional Comparativism Is Different: A Response to Professor Tushnet Roger P. Alford	518
Response Essay – Judicial Dialogue in Roper: Signaling the Court's Emergence as a Transnational Legal Actor? Melissa A. Waters	523
V.D International Law and Statutory Interpretation after 2000
Main Essay – Empagran’s Empire: International Law and Statutory Interpretation in the U.S. Supreme Court of the Twenty-First Century Ralf Michaels	533
Response Essay – Loose Canons: International Law and Statutory Interpretation in the Twenty-First Century William S. Dodge	547
Response Essay – Empagran: Empire Building or Judicial Modesty? Paul B. Stephan	553
V.E International Law and the War on Terror
Main Essay – The Supreme Court, the War on Terror, and the American Just War Constitutional Tradition David Golove	561
Response Essay – Constitutional Resolve in a World Changed Utterly Martin S. Flaherty	575
Response Essay – Judicial Imperialism and the War on Terror Cases Michael D. Ramsey	582
Part VI Conclusion
Continuity and Change over Two Centuries David L. Sloss, Michael D. Ramsey, and William S. Dodge	589
Index	607