Rewriting the Roberts Courts' Law of Treaties
14 Pages Posted: 29 May 2010 Last revised: 16 Nov 2010
Date Written: May 28, 2010
This short essay in the Texas Law Review's on-line companion, See Also, responds to Professor Ernest Young's important article, “Treaties as 'Part of Our Law'.” Young defends the Roberts Court's recent decisions on the U.S. legal status of treaties and argues that treaties should have roughly the same status as federal statutes. I applaud Young's effort to put treaties and statutes on roughly equal footing, but I take issue with his analysis on several points, including whether federal courts should give some deference to the decisions of foreign courts, the relevance of the specificity or vagueness of human rights treaties to the question whether a treaty is self-executing, the existence of rights of action to enforce treaty provisions, and the reasons why not all treaty provisions are self-executing despite the sweeping language of the supremacy clause. I also suggest that Young's defense of the Roberts Court's decisions requires him to rewrite or re-reason the Court's opinions, and I note that this need to rewrite is something common to defenders of those decisions.
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