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Treaties in the Supreme Court: 1946-2000

Paul B. Stephan III

University of Virginia School of Law

Febuary 2010

Virginia Public Law and Legal Theory Research Paper No. 2010-06

This paper, a chapter in a forthcoming book on International Law and the Supreme Court, examines the treaty decisions of the Court during the postwar era, up until the second Bush Administration. Three patterns stand in the many (roughly 130) decisions. First, the Court acted as if the immediately preceding period – the New Deal, then the War – created a sharp break with the past, freeing the Court to address many questions as novel rather than rooted in settled practice. Second, the Court largely resisted the invocation of treaties as authority contradicting congressional statutes and executive practice regarding matters of public law, but gave greater effect to treaties that addressed what the Court perceived as matters of private interest – disputes over property ownership, contract enforcement, and liability for torts. Third, the Court did invoke treaty-based rules in cases where it perceived the desire of Congress and the President to draw on international law to fill out the meaning of particular statutes.

Number of Pages in PDF File: 68

Keywords: treaties, international law, supreme court, direct effect, interpretation

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Date posted: February 26, 2010 ; Last revised: March 7, 2010

Suggested Citation

Stephan, Paul B., Treaties in the Supreme Court: 1946-2000 (Febuary 2010). Virginia Public Law and Legal Theory Research Paper No. 2010-06. Available at SSRN: https://ssrn.com/abstract=1559151 or http://dx.doi.org/10.2139/ssrn.1559151

Contact Information

Paul B. Stephan III (Contact Author)
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States
434-924-7098 (Phone)
434-924-7536 (Fax)

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