Off the Track or Just Down the Line? From Erie Railroad to Global Governance

50 Pages Posted: 26 Aug 2014  

Jeremy Rabkin

George Mason University School of Law

Date Written: August 25, 2014

Abstract

Prior to the Supreme Court’s 2012 Kiobel ruling, federal courts had, for three decades, agreed to hear human rights claims by foreign nationals, concerning abuses by foreign governments in their own territories. Some of the same commentators who applauded these cases also endorsed judicial rulings closing American courts to claims against foreign governments for expropriation of property – even when the property was in the United States or owned by Americans. Court rulings on the “federal common law of foreign relations” have zig-zagged since the 1930s. That confusion reflects the displacement of basic principles of common law ordering, which earlier generations identified with natural law. Erie v. Tompkins gave great momentum to that distorting impulse in modern jurisprudence.

Keywords: deference, executive, extraterritorial, choice of law, federal court jurisdiction, Filártiga v. Peña–Irala, foreign relations law, general common law, global constitutional law, international human rights, international relations, natural law, Sosa v. Alvarez–Machain, transnational public law

JEL Classification: K33

Suggested Citation

Rabkin, Jeremy, Off the Track or Just Down the Line? From Erie Railroad to Global Governance (August 25, 2014). Journal of Law, Economics and Policy, Vol. 10, No. 1, pp. 251-299, 2013; George Mason Law & Economics Research Paper No. 14-35. Available at SSRN: https://ssrn.com/abstract=2486817

Jeremy Rabkin (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Dr
Arlington, VA 22201
United States

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