Supremacy and Diplomacy: The International Law of the U.S. Supreme Court

57 Pages Posted: 29 Nov 2005

See all articles by Harlan Grant Cohen

Harlan Grant Cohen

Fordham Law School; University of Georgia School of Law; University of Georgia - Dean Rusk International Law Center

Abstract

In 2003-2004, a Presidential campaign year dominated by debates about international affairs and international law, the U.S. Supreme Court took an unusual number of cases of international import. The Court considered the Alien Tort Claims Act and the future of human rights suits in U.S. courts, the applicability of the Foreign Sovereign Immunity Act to claims involving Nazi-stolen artwork, the applicability of American antitrust law to foreign anticompetitive activity, and the legality of the Guantanamo detentions. A great deal of ink has been spilled analyzing the individual impacts of each of these cases. What has been less considered is how these cases fit together and what, together, these cases can tell us about the Supreme Court's nascent theories of international law.

Supremacy and Diplomacy: The International Law of the U.S. Supreme Court examines the international theory of the U.S. Supreme Court. Teasing out the various Justices' views from the 2003-2004 Term's international cases, the Article examines the Court's understanding of international law and the Court's role in the world. It looks at the varying success of particular parties in these cases, e.g., the U.S. government, foreign governments, and human rights activists, as well as how the Court approaches different fact-patterns. The article concludes that the Court has reached an unstable ad hoc compromise between redressing international wrongs and protecting American sovereignty. It argues that the Court's fractured discourse requires both the U.S. government and international law advocates to take an active role in shaping the Court's international law theories.

Suggested Citation

Cohen, Harlan Grant, Supremacy and Diplomacy: The International Law of the U.S. Supreme Court. Berkeley Journal of International Law, Vol. 24, No. 1, 2006, Available at SSRN: https://ssrn.com/abstract=859404

Harlan Grant Cohen (Contact Author)

Fordham Law School ( email )

150 West 62 Street
New York, NY 10023
United States

University of Georgia School of Law ( email )

Hirsch Hall
Athens, GA 30602
United States
706-542-5166 (Phone)

University of Georgia - Dean Rusk International Law Center ( email )

100 Herty Drive
Athens, GA 30602-6018
United States

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