Off the Track or Just Down the Line? From Erie Railroad to Global Governance
George Mason University School of Law
August 25, 2014
Journal of Law, Economics and Policy, Vol. 10, No. 1, pp. 251-299, 2013
George Mason Law & Economics Research Paper No. 14-35
Prior to the Supreme Court’s 2012 Kiobel ruling, federal courts had, for three decades, agreed to hear human rights claims by foreign nationals, concerning abuses by foreign governments in their own territories. Some of the same commentators who applauded these cases also endorsed judicial rulings closing American courts to claims against foreign governments for expropriation of property – even when the property was in the United States or owned by Americans. Court rulings on the “federal common law of foreign relations” have zig-zagged since the 1930s. That confusion reflects the displacement of basic principles of common law ordering, which earlier generations identified with natural law. Erie v. Tompkins gave great momentum to that distorting impulse in modern jurisprudence.
Number of Pages in PDF File: 50
Keywords: deference, executive, extraterritorial, choice of law, federal court jurisdiction, Filártiga v. Peña–Irala, foreign relations law, general common law, global constitutional law, international human rights, international relations, natural law, Sosa v. Alvarez–Machain, transnational public law
JEL Classification: K33Accepted Paper Series
Date posted: August 26, 2014
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