Abstract

http://ssrn.com/abstract=907709
 


 



Sovereignty and the American Courts at the Cocktail Party of International Law: The Dangers of Domestic Judicial Invocations of Foreign and International Law


Donald J. Kochan


Chapman University School of Law


Fordham International Law Journal, Vol. 29, 2006
Chapman University Law Research Paper No. 08-05

Abstract:     
With increasing frequency and heightened debate, United States courts have been citing foreign and "international" law as authority for domestic decisions. This trend is inappropriate, undemocratic, and dangerous. The trend touches on fundamental concepts of sovereignty, democracy, the judicial role, and overall issues of effective governance. There are multiple problems with the judiciary's reliance on extraterritorial and extra-constitutional foreign or international sources to guide their decisions. Perhaps the most fundamental flaw is its interference with rule of law values. To borrow from Judge Harold Levanthal, the use of international sources in judicial decision-making might be described as "the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends." Activism is emboldened and the rule of law is diminished. Sovereignty dictates that a nation governs itself and creates its own laws. When authorities begin to allow the piercing of the veil of sovereignty - allowing outside sources to pierce the boundaries of domestic law - there is a surrender of the legislative autonomy a nation holds.

But if the legislature is the ultimate lawmaking power, it is inappropriate for the judiciary to look beyond domestic pronouncements of law and invoke foreign or international pronouncements of "law" to decide governance standards. Predilections of particular judges should not punctuate domestic pronouncements or allow the projection of international standards into controlling law when not promulgated through the political process.

There is an emerging and growing debate regarding the judicial invocation and citation of international "law" or foreign law. Courts interpreting United States law should be interpreting United States law. The invocation of foreign or international sources in judicial opinions circumvents the solemn duty of the judiciary to decide what the law is, not what it should be.

Number of Pages in PDF File: 47

Keywords: International Law, Supreme Court, Alien Tort Statute, Alien Tort Claims Act, Customary International Law, Constitutional Law, Separation of Powers, International Relations, Law of Nations, Article III, Human Rights, Torts, Corporate Liability, Sovereignty

JEL Classification: F00, H00, H10, H11, H19, K00, K10, K32, K33, N50

Accepted Paper Series


Download This Paper

Date posted: June 14, 2006 ; Last revised: May 15, 2013

Suggested Citation

Kochan, Donald J., Sovereignty and the American Courts at the Cocktail Party of International Law: The Dangers of Domestic Judicial Invocations of Foreign and International Law. Fordham International Law Journal, Vol. 29, 2006; Chapman University Law Research Paper No. 08-05. Available at SSRN: http://ssrn.com/abstract=907709

Contact Information

Donald J. Kochan (Contact Author)
Chapman University School of Law ( email )
One University Drive
Orange, CA 92866-1099
United States
714-628-2618 (Phone)
714-628-2576 (Fax)
HOME PAGE: http://www.donaldjkochan.com
Feedback to SSRN


Paper statistics
Abstract Views: 1,869
Downloads: 363
Download Rank: 43,514

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo1 in 0.579 seconds