The Irrepressible Functionalism in U.S. Foreign Relations Law

Abstract

This essay, written as an introduction to a collection of law review articles, describes the pervasive role of functionalist reasoning in modern Supreme Court decisions relating to foreign relations law. Much of this reasoning consists of “first-order functionalism”—that is, the legal tests themselves are formulated in functionalist terms. For some foreign relations law doctrines, however, the Court has insisted on more categorical rules, and some commentators have suggested that this insistence has become more common in recent years. Even in these instances, the essay explains, the Court has often relied on functionalist reasons for formalizing the doctrine—that is, it has relied on what the essay calls “second-order functionalism.” The essay is intended to be primarily descriptive rather than normative and makes no claim about the persuasiveness of the Court’s functionalist reasoning. Instead, the claim is simply that functionalist reasoning has been a recurring feature of judicial decisions in the foreign relations law area and that this reasoning has persisted, although sometimes in different forms, even when the Court has shifted to more formal legal doctrines.

Keywords: foreign relations law, formalism, functionalism, exceptionalism