Contesting Adjudication: The Partisan Divide over Alien Tort Statute Litigation
Northwestern University - School of Law
November 30, 2012
Northwestern Journal of International Law & Business, Forthcoming
Northwestern Public Law Research Paper No. 12-31
When the Supreme Court recently heard oral arguments in Kiobel v. Royal Dutch Shell, a much anticipated Alien Tort Statute (ATS) claim from the Second Circuit, it was confronted with what seemed like a puzzling litigation move by the government. The Solicitor General’s office seemed to back away from a litigation position it adopted before the Court barely eight years ago during the Bush administration as to whether the statute could ever be applied extraterritorially and also whether it hampered the executive branch’s authority in foreign affairs. Given the modern history of the ATS, this development was hardly unusual: ever since the statute’s revival in 1980, Democratic administrations have been consistently in favor of adjudication under the statute while Republican administrations have been against. But why would this be the case? After all, the conventional wisdom assumes that presidents (from either party) are empire builders who prefer to shape international law and foreign policy without any meddling from the courts. This Essay advances a partisan logic to explain the variation in the approaches of Republican and Democratic administrations to ATS adjudication. Under this logic, presidents and judges are also political actors whose partisan (or ideological) preferences regarding substantive international law will sometimes trump their institutional or interpretive empire-building objectives. Thus, presidents who are sympathetic to the ideological goals of a specific international law norm may be willing to relinquish interpretive authority to courts in order to entrench the norm in a way that binds their successors and other domestic political actors. Conversely, judges who are unsympathetic to the policy goals of an international law norm may be willing to relinquish interpretive authority to the President (or the political branches) in order to prevent legal entrenchment.
Number of Pages in PDF File: 58
Keywords: Alien Tort Statute, International Law, International Human Rights Law, Political Economy, Constitutional Law, Foreign Relations
JEL Classification: K10, K19, K33, K39Accepted Paper Series
Date posted: December 2, 2012
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