David Sloss, THE ROLE OF DOMESTIC COURTS IN TREATY ENFORCEMENT: A COMPARATIVE STUDY, Cambridge University Press, 2009
42 Pages Posted: 20 Jan 2009
Date Written: January 12, 2009
This is a chapter on the United States for a book that provides a comparative perspective on the role of domestic courts in treaty enforcement. Analysis of judicial decision-making in treaty cases is problematic because U.S. courts apply two mutually inconsistent models: the "nationalist" and "transnationalist" models. Current doctrine provides support for both the nationalist and transnationalist approaches. Accordingly, this chapter combines doctrinal and empirical analysis in an effort to explain when courts are most likely to adopt a nationalist approach and when they are most likely to adopt a transnationalist approach.
The empirical analysis demonstrates that, in litigation between private parties, courts are more likely to apply a transnationalist approach than a nationalist approach. However, in cases where private parties are adverse to government actors, courts are more likely to apply a nationalist approach than a transnationalist approach. The empirical analysis also demonstrates that there is a statistically significant correlation between case outcomes and a court's discretionary decision to adopt a nationalist or transnationalist approach. The party invoking a treaty wins more than 50 percent of the cases in which courts apply a transnationalist approach. In contrast, the party invoking a treaty wins fewer than 20 percent of the cases in which courts apply a nationalist approach. The fact that the party invoking a treaty has a higher winning percentage when courts adopt a transnationalist approach holds true for both private party litigation and for cases where private parties are adverse to government actors. However, if one divides the governmental cases into civil and criminal cases, the observed pattern does not apply to criminal cases. The government wins approximately 98 percent of the criminal cases in which one party invokes a treaty in support of a claim or defense. In this category of cases, there is no significant correlation between case outcomes and a court's discretionary choice to apply nationalist or transnationalist tools.
Suggested Citation: Suggested Citation
Sloss, David L., Treaty Enforcement in U.S. Courts: An Empirical Analysis (January 12, 2009). David Sloss, THE ROLE OF DOMESTIC COURTS IN TREATY ENFORCEMENT: A COMPARATIVE STUDY, Cambridge University Press, 2009. Available at SSRN: https://ssrn.com/abstract=1326709 or http://dx.doi.org/10.2139/ssrn.1326709