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April 09, 2009


Publius, it would be informative if you'd respond to the comments on your last post on this topic, particularly this one.


"Similarly, most countries have voluntarily adopted the Geneva Convention"

IANAL, but it's rather startling to read this locution, given that there is no "the Geneva Convention." There are, famously, four Geneva Conventions. This is basic to discussing any of them.

I find it unnerving when a lawyer is so imprecise. When you get something wrong that I know about, and is so simple, it makes me wonder what you might be getting wrong that I don't know about.

I hear he's in bed with the Saudis too!

I agree that the President shouldn't back down, but am not under any illusion that his will avoid having to fight this battle over and over.

Publius, it would be informative if you'd respond to the comments on your last post on this topic, particularly this one.

Well, I'm not Pulius, of course. But it seems to me that the questions to which you linked are put at a level of abstraction which makes discussion difficult.

For example, should a treaty that the US did not ratify be used to show international norms that ought to be enforceable in US courts as a matter of federal common law? Well, give me a concrete fact situation in which the issue arises, and I might be able to answer the question. Talking about it in the abstract lends itself to undue wankery.

Maybe another example would show what I mean. Should a US court sometimes apply Sharia law? Koh has been acccused of saying that there are cases in which Sharia ought to be applied, although the evidence of him actually saying that is highly dubious. But imagine a case in which a US Court has to interpret a contract made in Yemen. Application of Sharia contract rules to such a case is rather obviously correct, as long as it does not lead to some result that a US court would find repugnant . . .

Publius -

The looking-at-international-law-equals-looking-at-dictionaries argument is beneath you. Based on your prior writings, I would have thought you recognized that different sorts of external sources are consulted for different types of purposes, and that accepting one does not entail accepting others for the same purpose.

So, for instance, dictionaries, in some cases, may provide insight on what a text actually means and was understood to mean when written. The same could be said for foreign law in a limited set of circumstances (e.g. pre-founding English common law can inform common law notions here). But, in many cases, looking to international law involves something quite distinct from trying to ascertain the original public meaning of a text. Whether this is good or bad is a separate question, but I would have thought it an obvious point.


I would have thought this was obvious

"In many cases" - well, not in the case of how it's actually been used by the Supreme Court. I do think it's a bit rich though that the "limited set of circumstances" means "it's ok to help with originalism, but nothing else."

In all seriousness, i don't think the distinction works at all. If you're looking at external sources like these, it's perfectly fine to LOOK AT international law in informing judgments. again, this is laughably non-controversial.

Now that said, I'm sure you can find some more extreme int'l law academics that actually believe the more extreme theories that you're implying. but that's not koh. and i suspect you know this quite well

pre-founding English common law can inform common law notions here

Well, but it was (and is) very common to look to post-founding English common law to inform decisions about what US common law is, or ought to be.

Every L1 contract class studies Hadley v Baxendale (1854) 9 Exch 341, for example, which sets forth a basic common law rule regarding damages recoverable for breach of contract.

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