Koh and Federal Common Law (Wonkish)

by publius

Ed Whelan’s most substantive post so far is on a complicated topic – the role of “customary international law” as “federal common law.”  His post, however, casts an ongoing mainstream academic debate in an inflammatory and ultimately inaccurate light.  (Like Whelan, I’m learning some of this as I go, so I’ll correct anything I get wrong – but it’s important to pushback on this stuff).

Anyway, the ultimate problem with Whelan’s argument is that it transforms a debate about the allocation of power between federal and state governments into a worldwide conspiracy theory.  To Whelan, CIL is essentially part of a Rube Goldberg-like process whereby (1) a cabal on international activists pass a resolution and proclaim it law, (2) Obama appoints federal judges who are sympathetic; and (3) those judges use new versions of international law to “threaten” “representative government.”  There’s more than a little conspiracy theory involved.

At heart, however, much of this debate (particularly the Koh passage Whelan cites) is an argument about state versus federal authority.  To understand, you’ll need some background on the concept of “common law.”

“Common law” basically means judge-made law.  The idea is that judge-made law can exist outside of constitutions, or statutes, or regulations.  For instance, in certain states, you might be sued for assault under a common law definition of assault, even if there’s no assault statute on the books.

There are, however, two very distinct forms of common law – and one is far more problematic than the other.  First, “common law” can refer to a wholly independent binding law floating out in space (this is Holmes’ “brooding omnipresence”).  This is a problematic concept, and one that was essentially eliminated in the United States following the critiques of people like Holmes and other legal positivists.  The reason it’s bad is because it allows judges to make stuff up and be completely unaccountable for it.  For that reason, federal judges liked to use it to break up labor movements in the early 20th century.

The second notion of “common law” is far more benign.  This notion recognizes the supremacy of positive law (e.g., statutes, regulations), but allows courts to serve as a “gap fillers” where statutes are ambiguous (or where any source of positive law is ambiguous).  This is a huge part of what courts do – and there’s nothing controversial about it.

For instance, let’s say that a statute provides for a one-year statute of limitations.  And let’s assume that it matters whether Day 1 begins on the date of the injury, or on the next day.  If the statute is silent, judges might construe the statute in a way that starts the clock on the day of the actual accident. 

In short, courts would define when “Day 1” begins.  This gap-filling is essentially “common law” – the idea is that courts are allowed to fill gaps and interstitial areas on which the original source of law doesn’t speak.  If legislatures don’t like these rulings, they are free to immediately change them.

In short, Version #2 is what courts do every single day and is uncontroversial.  Version #1 is basically never done and is extremely controversial.  Whelan, in essence, is portraying Version #2 as Version #1, and making it seem a lot scarier than it is.

When Koh and others are saying that “customary international law” is “federal common law,” what they’re saying is that these customs can be gap-fillers where Congress or a treaty hasn’t spoken.  Whelan’s argument gives the impression, however, that customary international law (or CIL) will be more like the “brooding omnipresence” that will bind everyone helplessly.

Moving on to the allocation of power point, remember that gaps have to be filled by someone.  For instance, let’s say that no law speaks to the issue of consular immunity.*  Someone has to decide whether these officials are immune (and under what circumstances) if there’s no clear answer anywhere else in the positive law.  Koh is saying that he wants federal law to govern this issue, and to be informed by international custom.  Bradley and Goldsmith, by contrast, want these issues decided by state common law.

Neither is a flatly absurd position, but there are strong policy arguments against letting state courts be the gap fillers.  For one, in the international arena, we don’t want to talk with 50 different voices.  It makes sense to make these matters subject to federal law.  And federal law – like all positive law – requires gap fillers.  Courts can and do provide these gap fillers, and Congress can change the interpretations if they're unhappy with them.

It’s not clear from Whelan’s excerpt, but that’s what Koh is talking about in the excerpt Whelan provides:

On the contrary, insisting that “[i]nternational law is federal law,” [Koh] argues that “the capacity of the federal courts to incorporate customary international law into federal law—unless ousted by contrary [and subsequent] federal directive—is absolutely critical to maintaining the coherence of federal law in areas of international concern.” (emphasis mine)

Whelan cites this excerpt out of context to essentially argue that Koh wants liberal courts and activists want to use CIL as common law to undermine representative government.  In reality, Koh is talking in this passage about which institution should decide this stuff – federal governments or state governments.  After all, somebody has to.  That’s why Koh used the word “coherence,” which seems like a weird word to use if Koh were merely talking about overthrowing representative government.

And yes, to the extent this gap filling becomes part of federal law, of course it trumps contrary state law.  All federal law trumps conflicting state law.  There’s nothing to see here.

Again, this is complex stuff.  And there are certainly arguments about the policy rationales for why certain customs should or should not be recognized (or even whether they are in fact customs).  But what’s wrong about Whelan’s argument is that he’s transforming a more mundane academic argument into evidence of a global international conspiracy theory to undermine “representative government.”

One last point – the Bradley/Goldsmith article was not handed down from Sinai.  These are smart experts, but their article has been attacked on several fronts.  In particular, the notion that CIL didn’t start becoming a part of federal law until 1980 is just flatly wrong.  For instance, see Gerald Neuman, “A Response to Professors Bradley and Goldsmith, 66 Fordham L. Rev. 371 (1997) (*This article was the source of my consular immunity example too).

Comments

[Joe Thomas]

So, to make sure I understand the general idea of the gap-filling, is the Lily Ledbetter Act (and the court ruling that necessitated it) an example of the judicial branch "filling the gap" and the legislature deciding it didn't like how the gap was filled and fixing the problem?

[rea]

Oh, no, Publius--this explanation of "common law" is so wrong that I can hardlty begin to explain it all in a blog comment. But let me make a couple of points: (1) By "brooding omnipresence in the sky," Holmes was not denigrating the common law at all--he was ridiculing the notion that there is a natural law which common law ought to reflect. (2) Common law is not a "gap filler"-it is more like the law's default setting in the absence of legislative enactments. A great deal of practical, everyday law--torts, contracts, etc., takes place in an almost complete statutory vacuum. (3)There are almost no cases whatever controlled by any supposed "federal common law" except in areas of federal supremacy--like admiralty, bankruptcy, etc. If you bring your ngeligence claim in federal court, the federal court will not apply federal common law to resolve it--it will apply state law.

[publius]

rea - i don't see how that's different. one version of common law is basically natural law - it's the same thing.

Default settings are what I consider gap fillers.

Basically, I'm making the point that what courts do to fill in gaps, construe statutes, etc. is essential "common law" in the sense that it's judge-made law.

I mean, i might be wrong on various things, but I'd respectfully disagree that this is "so wrong." aren't we saying the same thing?

[publius]

I also think your second point is more of a state law point -- 'brooding" common law is alive and well in some states, and yes, it governs absent statutes, etc.

But that's not really true on federal level. even things like the Sherman Act decisions are considered "common law' that are built on top of the Sherman Act. On the federal side, these background defaults you talk about are "gap fillers."

[publius]

And yes Joe - that's precisely what happened. It's a very good example of what I'm talking about.

[Brett Bellmore]

"what they’re saying is that these customs can be gap-fillers where Congress or a treaty hasn’t spoken."

But what if Congress hasn't spoken on a topic because it didn't WANT anything said on that topic? Isn't refraining from passing a law also a legislative right?

[publius]

That's right Brett - what I meant is that where some POSITIVE ACT OF LAW is silent. gap filling implies existence of some other positive source. it's not a license to make stuff up (which is why constitutional decisions are so problematic in many respects -- there's so little meaningful text, that we have essentially one giant constitutional common law regime)

[Jonathan H. Adler]

Publius --

You're still watering down Koh's arguments. As you note, insofar as CIL is part of federal law, according to Koh, it can trump contrary state law. In other words, it can do more than "gap filling." While the application of idea in cases that involve international components (e.g. a dispute over an international business transaction), Koh rejects any such limitation, a point he makes explicit in his debate with Bradley and Goldsmith. So it is disingenuous to suggest that all Koh is talking about is making sure that we don't "talk with 50 different voices" in "the international arena."

The implications for current law of Koh's arguments are, in fact, potentially quite significant (a point Koh himself has trumpeted). Under Koh's theory, for instance, the Medellin case was almost certainly incorrect. This may be a good thing, but it's hardly non-controversial, and it is disingenuous to suggest otherwise. Similarly, even folks who defend Koh (such as Kevin Jon Heller) acknowledge that Koh's arguments could also affect the level of First Amendment protection given to offensive speech. (See, e.g., here: http://opiniojuris.org/2009/04/10/ed-whelans-version-of-honest-and-competent-debate/). Again, you may think this is a good thing, but it's hardly a modest or non-controversial result. For more examples of how Koh's theories could have dramatic consequences if adopted as U.S. law, see the list of questions for Koh listed by Julian Ku on Opinio Juris here: http://opiniojuris.org/2009/04/09/ten-questions-for-legal-advisor-nominee-harold-hongju-koh/.

Overall, I think you are trying to defend Koh by suggesting that his views, taken seriously, would not portend potentially significant and controversial changes in current law, rather than by defending the substance of Koh's actual claims. As a consequence, I don't think you are accurately characterizing Koh's work, or really responding to Whelan.

JHA

[gwangung]

But what if Congress hasn't spoken on a topic because it didn't WANT anything said on that topic?

If it's brought up in a suit, SOMEBODY wants something said. And a decision is going to be made in some sense.

[publius]

I honestly don't understand this trump state law point. Federal law trumps state law. The question of what federal law means is where gap fillers come in. Your point about it does more than "gap fill" is conflating these two distinct points. And of course whelan is doing it too in an inflammatory way.

And this First Amendment business - well, i'm going to need to see more than a throwaway footnote in one of his articles. The point Volokh raised the other day doesn't really say anything, and isn't elaborated on. If there's more too this, i'm happy to read it. But the implication is that scary Harold Koh wants to water down the first amendment b/c international liberal elites demand it, or something.

if you have better examples of the dramatic effect Koh's arguments would have, feel free to pass along. But this First Amendment stuff isn't cutting it based on what I've seen.

[Ugh]

I'm sorry, did anyone, anywhere, ever give a flying fnck who the head of the State Department’s Office of the Legal Adviser was before the current right-wing freakout? Does Whelan even know who the prior head of the State Department’s Office of the Legal Adviser was?

[Bob L.]

If Congress doesn't want to pass a law, no one can make it. But Congress does pass laws, thousands of pages of them each year, and it would require a superhuman effort for them to anticipate and resolve every question that could possibly come up in the administration and enforcement of those laws.

Take another look at the Lily Ledbetter case. Congress could have said that time to sue runs from the last salary payment affected by the discrimination, or it could have stated expressly what the Supreme Court said -- that the time runs from the first such payment. The case went all the way to the Supremes precisely because the statute said neither, just something like "one year from the discriminatory event." Not very helpful. Congress then realized that if it wanted a different rule from the Supreme Court's to apply, it had to make that rule explicit by putting it in the law. So it did. One gap filled, God knows how many millions to go.

If all statutes and regulations (and contracts and wills) were perfectly precise and comprehensible as to everything covered in them, we might not need lawyers. Don't hold your breath.

As I see it, Prof. Koh is basically proposing that courts examine the handling of parallel situations in other countries when trying to resolve questions of law affecting our relations with other countries or comparable situations. Ya gotta look at something, and close analogies are useful even if they come from overseas. For this the right is trying to pillory him. So much for common sense.

[Jonathan H. Adler]

I'm not conflating the points. Koh has argued that CIL, by itself, can be a source of binding obligation on states. That is, it can be the source of the obligation -- not simply a tool to help figure out the contours of an existing federal law requirement.

As for examples of significant effects, start with Medellin, and then consult Julian's questions, there are plenty.

I'll readily admit Koh is well within the mainstream of international law academics. However, what passes for mainstream in such circles is a far cry from what federal courts have actually held.

JHA

[d'd'd'dave]

//I’m learning some of this as I go, so I’ll correct anything I get wrong – but it’s important to pushback on this stuff//

"I don't know what I'm talking about but Kos told me to push back on anything that looks red so that's what I'm doing."

[d'd'd'dave]

//Publius --

You're still watering down Koh's arguments.//

"That was my intent. He's wearing red and it's important that we push back and make the issue murky."

[Eric Martin]

ddd: Wow, that was...really, really lame. Even by your admittedly low standards.

Better trolling please.

[Gary Farber]

"I'm sorry, did anyone, anywhere, ever give a flying fnck who the head of the State Department’s Office of the Legal Adviser was before the current right-wing freakout?"

Huh? Who here didn't care about John Yoo? Who didn't care about Jay Bybee? Who didn't care about how Jack Goldsmith threw out Yoo and Bybee's work, including the "torture memos"?

Not to mention that I wrote a very long comment a couple of months ago about William Rehnquist's role as Nixon's head of the OLC (Office of Legal Counsel, not "Office of Legal Advisor"), and how it laid the groundwork for the concept of "the unitary executive."

It's an absolutely crucial post; it's one of the most important Assistant Attorney General positions in DOJ.

Others in the position in the past I can name off the top of my head: Walter Dellinger, Antonin Scalia, Ted Olson, Douglas Kmeic, Nicholas deB. Katzenbach....

The OLC is woven throughout modern political history, making crucial decisions in every administration.

[d'd'd'dave]

// As a consequence, I don't think you are accurately characterizing Koh's work, or really responding to Whelan.//

"Exactly, but I admitted at the beginning that I don't know what I'm talking about and I'm just trying to push back blindly at anything red."

[d'd'd'dave]

"Besides if I put (wonkish) in the title, I can say nonsense and people will just assume it makes sense. They won't want to admit it is too deeply wonkish for them to understand."

[Gary Farber]

"I don't know what I'm talking about but Kos told me to push back on anything that looks red so that's what I'm doing."

It's offensive, as well as mind-reading, as well as idiotic, regardless of whether you agree or disagree with Publius, or what you think of his arguments, to suggest that he takes marching orders from someone. It would be exactly as well-founded to declare that d'd'd'dave has no mind of his own, and Rush Limbaugh told d'd'd'dave to push back on anything that offends rightwingers.

This is pure trollery. If you have something substantive to say, say it. If you don't, well, we all see that you have nothing whatever substantive to say.

And people who have no argument get nowhere in arguments.

[d'd'd'dave]

He does take marching orders.

[Eric Martin]

ddd: Please make a substantive argument or cease. You're in violation of the rules.

[d'd'd'dave]

// You're in violation of the rules.//

Go back and count how many times I was crapped on for making substantive points in the past with no claims of violation.

[Gary Farber]

"Go back and count how many times I was crapped on for making substantive points in the past with no claims of violation."

You're free to complain to the kitty. If you didn't, that was your choice. If you want to compile and submit a complaint about someone, do it.

Otherwise "waaah, they did it first!" also is not an argument.

Posting rules.

[...] Don't disrupt or destroy meaningful conversation for its own sake.

Do not consistently abuse or vilify other posters for its own sake.

If you want to get banned, I suspect all you have to do is carry on in such a vein.

And before you complain about the oppression inherent in the system, note that all you have to do to not have folks point this out to you is to instead make substantive points.

[Jay C]

@ d'd'd'dave:

At least publius, in this post, has freely admitted his own shortcomings regarding his familiarity with the (relatively) arcane legal issues nominally at point in discussions of Harold Koh's nomination - and yet still attempts to craft a reasonable discussion.

In pointed contrast, I have noticed, to very many of Dean Koh's detractors in the right-wing blogosphere, who have persisted in flogging a simple-minded, misconstrued and borderline-hysterical narrative about his opinions on international law - with certainly no more (or no less) legal expertise behind them than publius can muster.

Go back and count how many times I was crapped on for making substantive points in the past with no claims of violation.

Dude: getting "crapped on" for making "substantive points" is certain wrong: but your offerings so far today have been light-years distant from "substantive".

[Eric Martin]

Basically, what Jay and Gary said.

If you feel a commenter is violating the rules, bring it to one of the site's authors' attention and it will be addressed.

We've issued warnings to many people - including a warning issued to myself - because we all step over the line on occasion.

But that doesn't change the point: Do not make baseless accusations and insinuations such as you have here. They are a violation of the rules. Ditto the inanity of the comments themselves, in rapid fire succession.

[JerryN]

Gary - Koh has been nominated to be the legal adviser to the State Department, Dawn Johnsen is the OLC nominee.

[rea]

rea - i don't see how that's different. one version of common law is basically natural law - it's the same thing.

This is why I said that this topic was too complicated to explain in a blog comment--people a lot smarter than me have written whole books on this topic. But we are grappling with epistemology here. Those of us who, like Holmes, do not believe that natural law exists, can nevertheless believe in the existence of common law, and even litigate cases under the system.

Maybe we should consult with Hilzoy, and ask her if we can havve ethics without god--that's really the same question as whether we can have legitimate common law without natural law.

For the decisive rejection of the notion that common law = natural law, see ERIE R. CO. v. TOMPKINS, 304 U.S. 64 (1938:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=304&invol=64

[Gary Farber]

"Gary - Koh has been nominated to be the legal adviser to the State Department, Dawn Johnsen is the OLC nominee."

Oops.

[stefan]

One question in the background here is how the US legal system affects the ability of the US and US legal entities to shape and participate in international legal arrangements, everything from international criminal law to international private law (intellectual property law etc.).

One way for the US to participate in the international legal system is for the US to be sufficiently powerful to shape international law and the domestic law of other countries to be compatible with US domestic law, including US state law where relevant.

The other way, which is more important in realms where the US is not overwhelmingly powerful (say international regulatory affairs, where the EU now has a position at time more powerful than the US), is for the US to negotiate in the relevant international fora to obtain legal arrangements it prefers. This becomes more difficult if the US does not have a legal system which allows to US legal system to implement agreements it has made to in negotiations, say because federal courts cannot interpret international law -- even international law the US has agreed to -- to overrule US state law. To the the extent this view of the US system becomes -- and it is already there to some extent -- the standard view of the non-US legal community, it becomes much harder for the US to shape non-US legal arrangements. Having a system in which the US legal system allows state to undermine US legal commitments means other states aren't going to be as interested in making concessions to US views on these matters if the US isn't going to reliably implement what it agrees to.

See for instance the dissent in Medellin v. Texas (2008).

[rea]

Default settings are what I consider gap fillers.

Basically, I'm making the point that what courts do to fill in gaps, construe statutes, etc. is essential "common law" in the sense that it's judge-made law.

Why I object to calling common law decisions "gap fillers" is that common law came first. Statutes modify the common law rules. That's important from the point of view of epistemology and legitimacy. Common law is not a "gap filler" any more than the ocean is a "gap filler" between ships.

[tgirsch]

a cabal on international activists

I think you mean a cabal of international activists. I blame your obvious over-reliance on spell checkers. :)

[Bernard Yomtov]

Koh has argued that CIL, by itself, can be a source of binding obligation on states. That is, it can be the source of the obligation -- not simply a tool to help figure out the contours of an existing federal law requirement.

As I understand publius' point, though, CIL is binding only in the sense that publius's "gap-filling" common law is binding. It can be changed by legislative action.

Is the debate here over whether US judges are bound to use CIL in their spackling, or whether that's just one of several reasonable approaches?

[gwangung]

As I understand publius' point, though, CIL is binding only in the sense that publius's "gap-filling" common law is binding. It can be changed by legislative action.

For some reason, this is objectionable to many people. Despite their explanations, I'm afraid I don't fathom their objections.

Is the debate here over whether US judges are bound to use CIL in their spackling, or whether that's just one of several reasonable approaches?

That would be useful to find out, as it's not clear people are discerning any difference between the two.

[jrudkis]

Isn't the issue that treaties that the US has not signed can still be considered CIL, and therefore binding on the states. For example, Kyoto, which the Senate did not approve, could still be binding absent an affirmative law stating otherwise?

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The deal the States made with the federal government is that the Constitution, signed treaties, and laws made by the US overrule state law and state constitutions. The States did not sign up for CIL overruling state law.

[rea]

Why I babble in this thread about epistemology and legitimacy: We know why, in a constitutional republic, a statute is legitimate--its passed by the people's elected representatives--its legitimacy is ultimately derived from the consent of the people. It's harder to make that claim for judge-made law, especially where judges are not elected.

Back in the time of the founders, when everyone, even the Deists, believed in some form of natural law, common law was legitimate because it reflected natural law. We've long ago disregarded natural law as the foundation of our system, however.

So, why is judge-made law legitimate today? Well, I think it is, but I'm not sure I have a facile answer for that question . . .

[Porcupine_Pal]

Start with the 7th Amendment.

[Mary]

Well, I had a nice long comment but the site says it won't take it.

So maybe I'll try to email it.

[Mary]

Trying again

Well, I’m going to take a bit of a different track than either rea or publius in a shot at reducing this to a more pragmatic, nuts and bolts issue.

To get the tricycle off the driveway, with respect to Whelan’s query of “Anyone perceive a threat to American principles of representative government?” that answer is just the same with respect to “common law” vs. “federal common law” vs. “international common law” (or CIL for this discussion. Common law does not trump clear legislative enactments under anyone’s posits, so that’s just a silly nothing tossed in for no good purpose.

Common law is only in part a “gap filler” for areas no one ever thought to legislate. In much larger part, common law is in essence something akin to an expanded and combined dictionary/thesaurus for “the law.” It isn’t “just” a matter of filling in where legislation is silent, because even when legislation is very chatty it just doesn’t deal with everything. So common law basically puts flesh on the bones of the legislative law and just as the kind of flesh that goes on the bones might be somewhat different in an environment of cakes and pastries and redolence vs. berries and strife, or near a joint vs along a long bone, or where there are hundreds of small bones, common law does emerge and function differently in different contexts. It may not always be the interchangeable with “case law” (publius I think your example of something like the Sherman Act decisions are more directly a case law analogy) but for most functional purposes there’s not a huge distinction.

As such, common law is always extremely “fact dependent” and extremely environment dependent. This does not mean that the principles of the common law itself are all that mutable, but rather that those same principles create different shapes under differing stresses and fact settings (like jello in different molds, or Playdoh forced through different cutters with differing amounts of force).

If you were reducing to the simplest plane, the blood that allows common law’s heart to pump is the flow of reason, in the sense of reasonableness. To use concepts that are more easily juggled (even though you might quibble with them in some aspects), there is the not unsurprising situation that, just as some things are reasonable in some environments, but not in others, common law generated in different community environments can and does have different import and applications.

Now let’s go back to where we get the concept of common law – our very old British legal roots. Common law developed in communities – many of the philosophically meandering approaches will even go to the times when there was no ability to write and keep records of the common law within a community as it evolved. But the common law always was addressed at the applicable community in which it evolved. Discussions of “State” vs “Federal” vs “International” was obviously not much at issue in those originations, but the concepts of applicable community were. So it was not unheard of, DEPENDING ON THE SUBJECT MATTER AND THE AFFECTED PARTIES, for the Judges expounding on common law in their cases to reference non-local “common law” where national community interests were involved, and non-national “common law” (especially in military conflict settings) where extra-national community interests were involved. When you are talking about “customs and usages” most people realize and agree that the customary treatment differs as the interacting communities differ.

In the law’s hierarchy, while legislation is and does “reign supreme” it is equally fundamental that if you want to overcome “custom and usage” between affected communities (i.e., overcome “common law”) with legislation, you have to be clearly and unequivocally state and recite your rejection and intent to destroy and purge the common law aspects that you are rejecting.

So when Whelan latches on to this:

As Bradley and Goldsmith put it … Koh is making the “extraordinary claim that if human rights treaty norms are accepted by much of the world community, the norms become CIL that is self-executing, supreme federal common law both before the United States has ratified the treaty and after it has ratified the treaty on the condition that the treaty norms will not apply as domestic federal law.” (Bradley & Goldsmith Reply, at 2274.) In other words, in Koh’s view, CIL applies as domestic American law even before the United States has ratified a treaty embodying CIL, even if the ratification is conditioned on the treaty’s not being self-executing (i.e., not having any domestic effect)—and even, as the logic flows, if the United States rejects the treaty.

I have to yawn. That is how it works if the applicable community intersection is the international community (and presumably with respect to items that are the subject of treaty attempts, that is going to be the applicable community). If common law standards are XYZ, and there is a treaty proposed which states XYZ as its standard* but either a) the US adopts the treaty but says that standard is not self executing, or b) the US merely doe not ratify the treaty, then Koh is right as to the common law impact. You don’t escape common law by merely refusing to legislate it – you have to affirmatively legislate to reject it. This is a big ‘duh’ moment.

[*For those not familiar with how treaties work and I’m not claiming expertise here, but just to give context – despite the reference to treaties being “laws of the land” once Congress jumps on board, it’s a bit more complicated than that. Treaties are either self-executing or not on the legislative front (as opposed to the common law front Koh is referencing). The text of a treaty is not treated as “legislated law” unless the treaty is what we call self executing. Most aren’t bc they would be very long and incredibly detailed and have to be tailored to suit difference in language and procedure and structure of the many and varied countries. So countries can ratify a non-self executing treaty with nothing (in which case all you have for context is common law – the nations and interntional) or a country can ratify but bootstrap to existing legislation (as in referencing certain parts of our Bill of Rights as the legislative overlay for executing our obligations under a human rights treaty). But just as when you have other legislation, or no legislation, common law applicable to the community of nations that also ratified the treaty is applicable to you, within that community, unless you expressly reject that common law legislatively or unless your bootstrapped legislation rejects the common law issues expressly.]

This context makes me add a stretch to my yawn over this from Whelan:

Koh also does not clearly dispute that CIL, as federal common law, binds the president and may be judicially enforced against him. In question-begging terms, he asserts that “controlling and valid presidential acts may supersede the application of customary international law rules” and refers neutrally to “the substantial scholarly debate that has raged over whether the President may or may not violate customary international law on the President’s own authority.” (Koh, at 1835-1836 n. 61.)

That’s very plainly and simply a Nuremberg type issue. Was there an international law, legislatively enacted by Germany in a self executing manner, that prohibited Hitler from gassing millions? Notsomuch. But was there a commonality of acceptance that “may not” applied to his actions vis a vis whether he ‘may” or “may not” engage in such activities on his own authority? In essence we’ve already had an international response on the SWIFT spying to this kind of posit – with the determination of “may not” and those cooperating with a President’s “own authority” vs the international community’s standard f acceptable behavior facing consequences.

Basically what is at the heart of Whelan’s approach is what is almost always and intrinsically at the heart of Goldsmith’s approach and they only pretend that it is limited to an international law setting. Their basic concept is that “the law” is what you are big enough to get by with. So a United States that is strong militarily and economically can ignore and flout international standards in its dealings with the international community and it is everyone else’s tough luck. I believe Goldsmith and Posner published a multichapter book that reduces to that concept.

Similiary, a strong President can not only violate customary international law on his own authority, he can violate express domestic statutes like the FISAct and the War Crimes Act on his own authority. What they are really saying is not really in the nature of a dissertation on law – it is that if the community refuses or is unable to apply a remedy for the violation, that is the same thing as there not being a violation. International custom and usage will never replace national custom and usage or state custom and usage (or even UCC types of more local custom and usage). It isn’t intended to replace it. Rather, the applicable “community” affected by certain actions and activities changes over time and depending on circumstances. When the weight of the affect is on a larger rather than smaller community, the larger community’s common law will and should apply. However, where, within a community, you have a small segment of the community that is disproportionately strong – whether or not the “should apply” becomes a “does apply” depends on whether the community as a whole can (and chooses to make the sacrifices to) enforce the rule of law versus allowing a bully to replace common law with imperialistic whim.

[von]

I appreciate that you're writing for a lay audience, but I don't think you've accurately characterized the common law (much less the development thereof, much less the role of the legal positivists in the 20s, 30s, and 40s). But, since debating that aspect of your post would require serious thought -- and I'm lazy this afternoon -- I'll turn my attention to your example of the statute of limitations and suggest a modest improvement. You write:

For instance, let’s say that a statute provides for a one-year statute of limitations. And let’s assume that it matters whether Day 1 begins on the date of the injury, or on the next day. If the statute is silent, judges might construe the statute in a way that starts the clock on the day of the actual accident.

Why not chose an actual example from the actual law governing statutes of limitations? It supports your gap-filler argument -- erroneous though I think it is -- and would educate the readership how the common law actually tends to work. How about:

Let’s say that a statute provides for a one-year statute of limitations. After the year has elapsed, no claim can be brought, no matter how meritorious. A question has arisen, however, regarding whether the statute of limitations starts to run on the day of the injury or, instead, on the day that the injury is discovered.

You can think of circumstances where this distinction could be important. For example, a surgeon negligently leaves a sponge inside your body. You've been injured as of the moment of surgury. There is a sponge inside of you that shouldn't be there. But you may not realize that you've been injured until you discover that a sponge is inside of you -- by, say, discovering that you've gotten an infection.

Where a statute is silent, courts deal with these kinds of issues by looking to the reason for the rule and what other courts have done in analogous situations in the past. The reason for the statute of limitations is to prevent folks from filing lawsuits based on events that occurred long ago. Courts recognize that the passage of time makes such lawsuits impractical and, perhaps, impossible to defend: memories fade, witnesses move away and die, documents are destroyed or lost, etc. We also don't want prospective plaintiffs to delay justice -- maybe to gain a tactical advantage. Statutes of limitations are codefications of these reasons and spring from older legal doctrines, such as the equitable doctrine of laches, which holds that one who sleeps on his rights may not exercise those rights to another's prejudice.

If you look at the rationale for a statute of limitations, analogous legal doctrines, and employ a little common sense, you come to realize that there's a pretty good argument that a statute of limitations shouldn't start running until the injury is discovered. We'll call this the "discovery rule." And, you probably won't be surprised to learn that variations of the discovery rule is the rule the majority of US jurisdictions for the majority of US claims.*

_____

*Disclaimer: Not legal advice. Note the caveats -- majority jurisdictions, majority claims. They are real, not merely for show. As always, employ your favorite lawyer if you need help ..... they need the business!

[Gary Farber]

"Well, I had a nice long comment but the site says it won't take it."

Try signing out of Typepad, and in again, or if you're not using that option, try again later; there's no length limit; Typepad is just tempermental.

[Mary]

Thanks Gary - I kept copying and it did eventually go through Whoever gets obsidianinfo emails - ignore.

[jrudkis]

Common law does not trump clear legislative enactments under anyone’s posits, so that’s just a silly nothing tossed in for no good purpose.

Doesn't Federal common law trump state legislative enactments? So the issue is that if CIL is in fact Federal common law, than it would override state legislative enactments.

or b) the US merely doe not ratify the treaty, then Koh is right as to the common law impact. You don’t escape common law by merely refusing to legislate it – you have to affirmatively legislate to reject it. This is a big ‘duh’ moment.

So you are agreeing that even though the US rejected Kyoto, state laws that violate Kyoto (and are not backed by federal statutes) are invalid?

That’s very plainly and simply a Nuremberg type issue. Was there an international law, legislatively enacted by Germany in a self executing manner, that prohibited Hitler from gassing millions?

I think this is a specific carve-out of international law, and is not generally applicable to all areas of international customary international law. And, in fact, would apply even if Germany had passed a law specifically authorizing gassing millions-it would override specific legislation.

[Pithlord]

I'm not sure it helps matters to confuse the common law with decisional, judge-made law, and neither are the same as natural law. The common law was the law enforced by the Courts of King's Bench and Common Pleas in medieval England. It was usually contrasted with the law of local or baronial courts, the church's courts and the Court of Chancery, which administered equity. All of these courts created decisional law. All of them were thought to be bound by natural law - and to the extent they differed, it was because of allowable differences in positive law.

The dispute over whether customary international law is federal common law and preempts state legislation might be "academic", but not in a sense that implies unimportant for practical power relations. If adopted, especially in conjunction with an ambitious concept of CIL, it would be a huge redistribution of power from state legislatures to international legal elites. It's certainly a legitimate issue, and can't be waved aside as a "conspiracy theory".

[Oyster Tea]

IANAL. My eyes are glazed over by having read trhese comments. I have learned only one thing. It is a prerequisite to be on the "Right" in order to be concerned about this.

[Mary]

Doesn't Federal common law trump state legislative enactments? So the issue is that if CIL is in fact Federal common law, than it would override state legislative enactments.

It depends (remember how common law and its application are fact and environment dependent). State legislative enactments with respect to state matters are not affected by federal legislation or federal common law. However, just as in some settings (eg interstate commerce) the nature and affect and degree of impact on communities demanded that a broader community have its interest heard (if the commerce clause had not been the vehicle, something else would have been bc the factual setting and environment were such that the broader community of interests and their impact had to be addressed), so, too, when the nature and affect and degree of impact of a state law somehow dips into our national relationships with other nations to the point of causing a significant impact, then you may also have to deal with that issue.

So you are agreeing that even though the US rejected Kyoto, state laws that violate Kyoto (and are not backed by federal statutes) are invalid?
In part, see above. Also in part, see federal statutes that do specifically set limits on emissions and the like. And of course Kyoto has some actual specifications that are not in the nature a recitiation of common law, even international common law. So what I think you mean vis a vis international common law and Kyoto would be whether or not there would be a time when e where a state's impact is critical enough that it might a) be deemed to be held to an international common law standard of needing to modify its behavior to international non-legislative (common law)[as where the US never adopts Kyoto] norms, or b) where an international legislation that does apply to the state (via, for example, Federal adoption Kyoto protocols) be deemed to have to look in part to international common law to help administer and explicate its duties. Sure - some time that might be the case. This is basically the underlying rationale, for that matter, as to why Israel, for instance, might have a common law right to bomb Syria or Iran or another nation that is pursuing actions that are "legal" within that community, because of the broader impact. In essence, they would be asserting a kind of international common law claim of self defense. Would it be "right" legally? Again, see above, on facts, circumstances and environment. You need all the facts and circumstances to determine which aspects of common law apply and from what community sourcing.

I think this is a specific carve-out of international law, and is not generally applicable to all areas of international customary international law. And, in fact, would apply even if Germany had passed a law specifically authorizing gassing millions-it would override specific legislation.

How is it that you think it is a "specific carve out" It's not, although under a Goldsmith/Posner approach you can certainly claim almost anything as "international law" carve outs and standards if you think the US is big enough to evade the fallout.

The fact is that some of the oldest and most important areas where the impact of actions had such significant non-local impact that non-local common law became an element would be military conflicts. That doesn't make them a special carve out, just the most prevelant area of example.

And you are absolutely right that in the heirarchy (local, national, international common law applications) it would not have mattered if Germany had a law allowing for the gassing. That is part of the whole point. But if Germany had that law, and had not expanded its borders and there had never been a WW - just elements of genocide within its boarders, what then? If no one extracts consequences, is that the same as saying that the actions were "legal" internationally? If the international community did not assert its interest, then what?

War is one way in which a non-local community asserts its interest and in essence, avoidance of military conflict is at the heart of some of the decision making of when the community impact of international interests is such that there is a prudence reason for moving to the application of international common law.

But as international communications and trade have grown over the years (just as national communications and trade grew and increased a federal common impact) you have a lot of pressure to generate situations where, rather than force those interests are addressed by recogntion of impacts and applying norms acceptable to the wider community.

From a might makes right decision point, you don't have to worry much one way or another. But the whole of the evolution of law, common and other, has primarily been an attempt and effort to impose commuity standards such that you avoid the issue of might making right and apply a different form of dispute resolution.

From those underpinnings, then, the issue is one of the nature and degree of impact on the various community(s). If you end up with a "state" whose actions have such a tremendous international impact, then you might (facts and circumstance) reach a point where international law including international common law should validly be applied. And where that point lies depends on a lot of different factors. You can't apply international common law when there is no international impact, any more than you can apply federal common law to matters where there is no federal interest.

But if Maine's governor were, for example, shipping noxious waste to points in Canada (under laws allowing that in both Main and the US) and that waster were causing deaths in Canada, at some point you might well have a situation where international common law would apply, or if the shipments were made under a bare bones international treaty, where the President had used his/her "own authority" to set more specific standards that allowed for such a deletorious impact, then in those cases you might have situations where there could and should be an applicaton of international common law to override the national law of authorization or the Presidential order of interpretation or the State law determination that it is acting properly.

You can't draw bright lines on when you could or should look to international common law, bc community interests and interactions change. But to say that they should simply never apply is to assert that we basically feel that we are more comfortable relying on our military and economic options of dispute resolution than complying with international community standards even where there is a large impact.

In any event, this isn't really an issue of "is international common law federal common law" or "does international comon law preempt state law" but rather an issue of "when does federal common law include a component of international common law because of the extent and impact on the nation's international relationships" and when you reach that point, then sure, state law (common and legislative) falls.

But just like a lot of other common law issues, without a plethora of specific facts you can't make determinations. And even with those you will from time to time end up with situations like we have had with Bush/Obama where the federal common law and legislative law is pretty clear that the President is not above the law - and yet the practical fall out is that he is, because there is no one with the political, legal or military will to prosecute.

All fwiw and certainly states can try to "go galt" to reduce their international (and national) impact to the point where they don't fear much international common law applications. OTOH, not many would be willing to go there.

[jrudkis]

Mary,

Thanks for the detailed reply.

How is it that you think it is a "specific carve out"

I think there is a specific carve-out in international law for "crimes against humanity" that provides for international enforcement regardless whether there is nation-state approval/acceptance of the law. Although with Nuremberg in particular, the unconditional surrender gave the Allies the authority to try the cases, crimes against humanity do not require "buy-in."

I don't really think the issue is about whether the US is strong enough to ignore CIL. The issue is whether US Courts will apply international standards of law that are contrary to legislation passed by states.

The US Congress has the opportunity to either pass a treaty or pass laws that mirror international standards. When Congress does one of those two things, the State law that is in tension is abrogated. But that is the system we have to make states comply with international norms.

I am not saying, by the way, that when the court interprets a federal statute, it cannot use CIL to inform. If a Court interprets the clean air act and determines that it requires adoption of Kyoto standards, that may be reasonable (as you say, depending on the actual facts of the case and the law). What I don't think is reasonable is where federal statutory law is silent, a state law is directly abrogated solely on the existence of CIL.

But if Maine's governor were, for example, shipping noxious waste to points in Canada (under laws allowing that in both Main and the US) and that waster were causing deaths in Canada, at some point you might well have a situation where international common law would apply, or if the shipments were made under a bare bones international treaty, where the President had used his/her "own authority" to set more specific standards that allowed for such a deletorious impact, then in those cases you might have situations where there could and should be an applicaton of international common law to override the national law of authorization or the Presidential order of interpretation or the State law determination that it is acting properly.

I don't really think I buy this. Taking the hypothetical at face value, and assuming there are no applicable treaties that have been approved by the US that the laws would violate, there is no international law to apply. The US has an incentive to not cause deaths in Canada (due to trade or reciprocity), and to therefore work with Canada to create a relationship that would prevent those deaths. It is the job of the president and state department to work out international disputes and create treaties that become law. They law does not simply exist.

But that is why we do have treaties that we have signed that prevent such scenarios. Treaties provide the mechanism for parties to determine what international norms they will abide by (whether multi-party the the GC, or fewer parties like NAFTA).

[CharleyCarp]

The State Department can't take a position in court without the active connivance of the Attorney General. It certainly can't legislate. Tempest in teapot.

I have an ongoing matter about what it means for a treaty (eg Third Geneva Convention) to be self-executing. We'll see what our district judge thinks of it in a couple weeks.

[CharleyCarp]

It's harder to make that claim for judge-made law

No it isn't. Gap filling, and 'saying what the law is' are perfectly legitimate functions. And exist for a reason.

[Jeremiah]

Let's make Whelan's concern a little more concrete.

The United Nations Convention on the Rights of the Child provides in Article 18:

-For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.

-States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible.

Is it too difficult to imagine, if this attains the status of federal common law, that the states would be obligated to fund daycare?

The United States has not ratified this convention, but if it is seen as CIL, and if Koh's views prevail, it would be binding in the US, and the states would find themselves with obligations to which neither they nor the elected federal government consented.

If the US does ratify this convention, the Senate is likely to do so with a list of reservations including that the treaty is not self-executing and that the ratification is done consistent with the federal system. These are standard reservations the Senate has applied to most treaties of this type. They would mean that the treaty has no domestic legal effect absent implementing legislation, and, since family services are generally the prerogative of the states, that it would be up to the states to evaluate their conformance and enact whatever implementing legislation they chose. Most US states would, in that event, probably not choose to subsidize daycare.

Koh, however, may state that these reservations are illegitimate and void. Because of his position, his statement would carry weight in a suit brought in federal court demanding that the rights conveyed by the convention have domestic legal force.

There are certainly a number of federal judges who would be sympathetic to this argument. I don't think, given the present makeup of the judiciary and the Supreme Court, that such a ruling would survive review, but the occurrence would increase pressure in that direction.

Publius is correct that there are almost no examples of the courts using CIL to trump state law. But the reason for this is that the American judiciary is not where Koh and like-minded transnationalists want it to be.

So what is at stake here is not mere rules of interpretation or innocuous gap-filling or matters narrowly concerning relations between nations - Koh's view of CIL has implications for American democratic sovereignty in matters traditionally viewed as wholly of domestic concern.

[Gary Farber]

"Is it too difficult to imagine, if this attains the status of federal common law, that the states would be obligated to fund daycare?"

That would be great!

[Jay C]

@ Jeremiah:

While you do raise a valid point, in that there is (can be/would be) significant issues with regard to the obligations (if any) placed on states/the Federal government by international Conventions, it seems your argument suddenly goes off the rails in the eighth paragraph:

Koh, however, may state that these reservations are illegitimate and void.

Ummm, HAS he - ever? Has he taken any public position regarding the issues you raise? And if so, what are they? He "may" also state a lot of things: what relevance does this have to his fitness for the position?

Because of his position, his statement would carry weight in a suit brought in federal court demanding that the rights conveyed by the convention have domestic legal force.

Isn't the "position" Dean Koh has been nominated for that of Legal Advisor to the State Department? Does that office even HAVE any standing re "suit[s] brought in Federal Court"? Is there any specific legal opinion or brief Koh has written which would support this assertion? Or are you reading his mind?

Koh's view of CIL has implications for American democratic sovereignty in matters traditionally viewed as wholly of domestic concern.

Does it really? What "view" would that be? Other than the clairvoyant interpretations of Koh's right-wing critics (i.e. more-or-less-deliberate misconstruals), I have seen little in his published opinions that would speak to his ideas about "sovereignty" at all. Still less the wholesale replacement of domestic by "international" law your strawman argument would make of Harold Koh's
views.

[Jeremiah]

"Does it really? What 'view' would that be?"

In a comment on a previous post I've quoted an academic exchange where Koh argues that customary international law, including human rights law, is binding on the states as federal common law, even absent ratification by the Senate. If these views prevail, then the daycare scenario I mentioned may well come to pass - which clearly would be an imposition on democratic sovereignty.

As to the force of Koh's statements, the testimony of the Legal Advisor to the State Department in a ratification hearing in the Senate that the US has no authority to assent to a convention with the reservation that it is not self-executing would be of weight in a suit demanding the domestic enforcement of the convention notwithstanding a reservation the Senate made after such testimony.

As I mentioned, while a friendly judge might rule that the Senate's reservation was void, I don't think such a decision is likely to survive appeal given where the US judiciary is right now. But things can change.

[Sapient]

I'm just reading some of these comments casually, and received my legal training in the '80's. I haven't yet read the articles forming the basis of the post. Until I do, I think it might be interesting for people to have my pre-90s viewpoint on common law, and what International law should be used for by state court judges (as a result of having learned this stuff 25 years ago).

First, common law is a body of decisional law. It's "made" by judges who have jurisdiction over the particular issues at hand. Some issues (domestic relations, for example) require application of local (state) law, and other issues (like environmental safety) require application of federal law, and others require application of a combination of laws. Although it's true that judges sometimes "make law", they don't create answers to questions out of whole cloth - they rely on precedent (cases already decided in their own jurisdications), or other helpful information.

Sometimes judges are deciding issues based on facts almost exactly like facts that have been presented before. In those cases, judges go to their own body of decisions to determine the answer, and rarely deviate. When facts are unlike what they've encountered before, they look elsewhere in approximately the following order:

-local federal court decisions (if we're -talking about state issues, where state -law would control - like domestic relations)
-neighboring state courts
-farther away state courts
-majority U.S. precedent of other states
-legal treatises
-custom
-opinions rendered in other common law countries
-law in farther away countries
-academic, sociological or other expertise

In other words, there are a whole host of things that judges rely on when deciding cases, but they are supposed to (and usually do) justify their holding on precedent. Usually facts differ slightly from the precedent that has been established, and that's where lawyers have room to convince a judge to apply a slightly different ruling. This is called "distinguishing" precedent from the current set of facts. This is the way the law grows into a system that takes into account a variety of circumstances and issues, and it's how the law evolves to meet current times.

Federal common law works similarly in that it relies on lots of resources in order to make decisions. First and foremost, courts rely on their own past decisions. When interpreting a statute, for example, courts would look at decisions about that statute or similar previous statutes. It would look at legislative history, at similar statutory regimes in the states, at law regarding the issue prior to the passing of the statute.

Each case is different, and each statute is different. International law and norms should, and always have been, a resource to a judge in deciding a case, but the number of cases where it comes up is relatively small.

Now I'll go read the law review exchanges, and see whether I think that all of a sudden international law threatens representative government.

[GoodOleBoy]

All here who do not believe US sovereignty means that the US government (federal and state) is the sole judge of what law is in the US can state their preference for international government and we will know where everyone stands.

Then, if and when the numbers are favorable, the US Constitution can be voided, annulled, abrogated or whatever the appropriate terminology is and our individual liberty will be forfeit and, of even greater import, when we encounter the world dictator, there will be no where to turn to for help.

I state my opposition to such a development and my continuing support for the original intent of the framers as embodied in the Constitution.

[Gary Farber]

"I state my opposition to such a development and my continuing support for the original intent of the framers as embodied in the Constitution."

None of this seems remotely relevant to the discussion. Have you read the comments? Are you qualified to speak to the relevant issues of common law, CIL, etc.? Because you haven't addressed any of the issues brought up.

"[belief] in US sovereignty" is, absent context and specifics, a meaningless generality. The U.S. is soveriegn in endless ways, and yet still bound by various treaties it has signed, etc. I daresay no one here disagrees on this. Do you have some specific law or issue in mind? If so, bring it up. If not, your statement advances the discussion not at all.

[GoodOleBoy]

Gary,

The specific law which I had in mind is the U.S. Constitution, sometimes referred to as the supreme law of the land, in which certain functions are specifically delegated to the federal government, and those that are not are reserved to the states and the people. Upon review, I see none either delegated or reserved for the international community of nations in any form whatsoever. I have read the comments and I note that some who have commented explicitly state non-belief in the concept of natural law, which I think informed the position taken by the framers of our supreme law.

[Gary Farber]

"The specific law which I had in mind is the U.S. Constitution"

The Constitution isn't a law. It's the Constitution. Laws are either federal U.S. Code, or state code, or are common law. Common law is law, despite not being in the Constitution. Do you contest this?

I'm not clear that you have relevant knowledge of common law or CIL to bring to bear on this subject. Your comments avoid reference to any specific issue brought up by anyone in this thread. This suggests that you're simply issuing a knee-jerk generality, rather than actually knowing anything about the topic of CIL. Have you read any books on CIL, or do you have any relevant legal training?

A reply that you've read the Constitution won't be responsive, and I'll take that as an admission that, no, you don't actually know anything about CIL and common law.

But, hey, surprise me.

[GoodOleBoy]

Article VI of the US Constitution says that the Constitution is the supreme law of the land. Words have meaning, right?

[Gary Farber]

And I was so hoping to be surprised.

[Sapient]

In the Prize cases (1862) the Supreme Court cited international law as a source in deciding that it was constitutional for President Lincoln to blockade ships. This is an example of international law being used as federal common law. Nothing new; nothing weird; nothing radical.

[Gary Farber]

"...of even greater import, when we encounter the world dictator, there will be no where to turn to for help."

Which world dictator will that be, by the way?

[CharleyCarp]

My third comment above was eaten, but Sapient's of 8:46 reminds me to re-post:

It has also been observed that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains . . .

To Jeremiah's of 2:26, let me say that I cannot imagine a judge giving more regard to the testimony of a State Department lawyer than to the floor statements of the proponents of treaty ratification. And while it's true that the configuration of the judiciary might change, this is not possible in the time frame to which Koh's tenure would be relevant.

[CharleyCarp]

I don't know, but it also seems to me that there's an Eleventh Amendment problem with some of the nightmare scenarios too.

[Sapient]

In an interesting case (1897) about citizenship, the Supreme Court talks about the common law, and relies (as supporting authority) on the laws of European countries in reaching its decision. United States v. Wong Kim Ark.

Anyway, the point is that it's not really some new revolutionary overthrow of the government for the law to incorporate international norms. Because the Harvard Law Review articles aren't freely available, I haven't had a chance to read them - I'll have to make a trip to my local law library. But according to Whelan, Bradley and Goldsmith argue that international law was not part of federal common law. I'm not exactly sure what that means having not had access to their article, but it's clear that the Supreme Court has long looked to international law to support their decisions as to federal common law issues.

[CharleyCarp]

Yes, Sapient, and courts in Virginia will sometimes look at decisions from New York in deciding an unsettled question of Virginia law. Or decisions from Illinois. Or North Dakota. And even decide that decisions from all three amount to a majority rule, which might be followed, in preference to a minority rule out of California.

The whole thing seems so completely unlikely to me, and would depend on so many more things than appointment of this one guy into this one position.

[CharleyCarp]

(By 'the whole thing' I mean any negative consequence to the structure of the law in the US from Koh's service in this position).

[Gary Farber]

"The whole thing seems so completely unlikely to me, and would depend on so many more things than appointment of this one guy into this one position."

Ah, but it's all part of the insidious conspiracy to take us, step by step, into the One World Government planned by the Bilderbergers/Masons/Trilateral Commission/New World Order/Jewish Bankers/Antichrist/communists.

It's a slippery slope you liberals are trying to take us down, and we know you work patiently to dismantle our constitutional freedoms!

[GoodOleBoy]

Gary,

I boast none of the illustrious legal qualifications and knowledge on display here, but the relevant connection of my comment regarding US sovereignty is Jeremiah last paragraph at 11:23 AM. I also refer to the jrudkis last paragraph at 3:31 PM. Since I know you are a stickler for authoritative cites, would you please seek one for rea"s 'We've long ago disregarded natural law as the foundation of our system, however.' at 3:33 PM.

I guess I missed some rules regarding what qualifications were required in order to comment.

[Sapient]

What's kind of frustrating about the post and the NRO article is that the underlying articles are very inconvenient to read (in that they're not online, and not extensively quoted in the NRO piece).

In any case, you're right, CharleyCarp. The issue is not a practical problem, even if it were a problem, which it isn't.

[GoodOleBoy]

Gary,

Thanks for your affirmation of your belief in our constitutional freedoms. So far, you stand alone with me. (snark)

[Jeremiah]

Regarding Koh's views on whether human rights conventions become CIL are self-executing as CIL and whether the Senate has the power to ratify a treaty with a reservation denying it self-executing force, Whelan cites a long footnote in Koh's 1998 Harvard Law review article that I mentioned earlier. I reproduce the footnote below, minus some citations.

Koh likes to argue that under his opponents' theories some grossly immoral things would not be forbidden to US states by binding international law . In this footnote, the immoral thing is the execution of pregnant women. I think this is a poor habit of argument. Does any state have a policy of executing pregnant women? Would the domestic laws of the US have the effect of permitting genocide (another gross immorality he would tar his oppoents with permitting)? No and no. Are the norms developed in international fora always inherently more virtuous than is domestic law? Unless you are prepared to make that argument, I don't think the kind of line Koh employs in this footnote and elsewhere holds any water. But in any case, here's the footnote:

Article 1(2) of the Senate's reservation to its advice and consent to ratification of the International Covenant on Civil and Political Rights (ICCPR), 999 U.N.T.S. 171 (Dec. ig, 1966), purports to preserve the discretion of the United States to impose capital punishment on any duly convicted person "other than a pregnant woman." Reservation No. 1, 138 CONG. REC. S4 783 (daily ed. Apr. 2, 1992).

Yet another statement attached by the Senate "declares that the provisions
of Articles i through 27 of the Covenant [including Article 6.5, the relevant right-to-life provision of the Covenant] are not self-executing." Declaration No. i, 138 CONG. REC. S4784 (1992). The executive branch has not yet sought any implementing legislation for the ICCPR.

Many scholars question persuasively whether the United States declaration has either domestic or international legal effect See, e.g., Lori Fisler Damrosch, The Role of the United States Senate Concerning "Self-Executing" and "Non-Self-Executing" Treaties, 67 Cm.-KENT L. REV. [etc.] But under Bradley and Goldsmith's analysis, such declarations "make clear that the political branches have not generally authorized the application of the norms embodied in the treaties as domestic federal law." [...]Thus, under their reasoning, even if the universal practice among States indicated a customary international law norm against the execution of pregnant women, the legislatures and courts of the states of the United States would be free to ignore that norm.

[Me again]
The passages I italicized above suggest that Koh strongly doubts the power of the Senate to declare in a reservation that a treaty or convention is not self-executing.

Moreover, Koh's footnote also suggests that he believes that even supposing the Senate declares a convention not to be self-excuting, so that it does not become binding US law by ratification, it might yet become binding US law if it is CIL, the Senate's reservation notwithstanding.

[Jeremiah]

I agree with CharlieCarp that Koh is unlikely, from the position of State Department Legal Advisor, to get the federal judiciary to adopt his views - which it would have to do for scenarios such as compelling states to fund daycare to become real.

But this is a thread about what Koh's views are and what they would mean if implemented.

[Jeremiah]

Some of the sentences in my 11:12 comment have too many clauses and are hard to read. Apologies.

[Gary Farber]

"Moreover, Koh's footnote also suggests that he believes that even supposing the Senate declares a convention not to be self-excuting, so that it does not become binding US law by ratification, it might yet become binding US law if it is CIL, the Senate's reservation notwithstanding."

IANAL, but supposing some district judge did make such a ruling, why wouldn't an appellate court reverse if such a decision wasn't founded, and why wouldn't SCOTUS overturn a runaway appellate court, if this was some sort of problem of runaway lower courts?

That's supposing that somehow the advisor to the State Department's opinion were, in fact, problematic, and somehow the judgements of federal district courts, by some mechanism unspecified, suddenly started citing said advisor's opinions as relevant, if not controlling.

All of which seem like a great many ifs if we're supposed to be alarmed.

[Jeremiah]

Re: Gary Farber 11:28

I agree entirely. But it is a significant change to go from arguing that Koh's views are innocuous to arguing that they should not matter because he would have insufficient power to implement them.

[jrudkis]

Koh is being attacked by the right at this time because he was seen as a likely choice by Obama for the USSC.

At least, that is what the articles publius linked to said.

So maybe this is a "preventive" attack, rather than a "preemptive" one.

[CharleyCarp]

I would be interested to know Justice Scalia's view on Senate reservations, if he's expressed one. I can imagine him disregarding them, if the language of a treaty is unambiguous: that is certainly his position with respect to statutes passed by Congress.

[John Spragge]

The constitution of the United States explicitly recognizes the law of nations as a category in Article 1 section 8. The constitution lists defining and punishing offences against the law of nations in the enumerated powers.

In addition, I would argue that in the case of eighth amendment jurisprudence, the courts can reasonably construe the word "unusual" in "cruel and unusual punishments" in relation to the usage in nations throughout the world.

And to address Good Ole Boy: if an actual world dictator should arise, meaning someone with the charisma, ability, and ruthlessness to unite 95% of the world's population in an absolute state, do you really think the opinions of a legal advisor to the State Department in the Obama Administration will rank very high on your list of worries?