Stare Decisis and Foreign Affairs

Beginning of article

ABSTRACT

This Article examines whether the jurisprudential and institutional premises of the doctrine of stare decisis retain their validity in the field of foreign affairs. The proper role of the judicial branch in foreign affairs has provoked substantial scholarly debate--historical, institutional, and normative--since the founding of the Republic. Precisely because of the sensitivity of the subject, the Supreme Court has both warned about the judicial branch's comparative lack of expertise in the field and established a web of deference doctrines designed to protect against improvident judicial action. Notwithstanding all of this discussion, however, neither the Supreme Court nor any scholar has ever examined the complicated relationship between stare decisis and foreign affairs.

This Article first contextualizes the discussion with an analysis of the foundations of stare decisis. After a review of the values that animate the doctrine, it explores the subtly important jurisdictional premises of stare decisis. Almost entirely overlooked by both courts and scholars, these inherent jurisdictional limitations on the force of precedent have direct implications for the proper role of stare decisis in foreign affairs law. The Article then examines the special constitutional arrangement of powers in the field, in particular the respective roles of Congress and the executive. Just as significant, the Article also canvasses the multiplicity of avenues by which the American legal system channels foreign affairs issues to the federal courts. This growing interbranch tension highlights the significance of reflexively cloaking the resultant judicial precedents with full stare decisis effect.

The analysis in this Article demonstrates that in fact a more nuanced and accommodating understanding of precedent is required with respect to certain fundamental aspects of foreign affairs law. For purely domestic statutes, fidelity to the value judgments first made by Congress within and for the domestic legal system should avoid both the fact and appearance of independent judicial agency. Moreover, when Congress takes it upon itself to define the entire content of the law--without importing international legal norms--the courts need look only to familiar domestic sources and materials in their interpretive inquiries.

Matters are different, however, for the broad and expanding field of controversies that likewise fall within the Article III "judicial Power" but that involve the courts in the enforcement of rights or obligations grounded in international law. Within this field, the analysis in this Article demonstrates that the likelihood and consequences of judicial error are greater, that precedents are particularly susceptible to rapid erosion by exogenous forces of change, and that institutional considerations make judicial leadership that has been fortified by rigid precedent particularly problematic. It ultimately concludes that these distinct considerations should function as an additional "special justification" for reexamining international-law precedents. Consistent with the systemic values of stare decisis, however, the reexamination power should exist only for the issuing court; lower courts in the hierarchically integrated judicial branch--courts that are subject to the vertical dimension of stare decisis--should remain bound by precedents to the full extent of existing law.

TABLE OF CONTENTS

Introduction

I. The Foundations of Stare Decisis
    A. Understanding the Notion of Precedent
    B. The Values that Animate Stare Decisis
    C. The Stare Decisis Antivalues: The Justifications for
       Reexamining Precedent
    D. Institutional and Instrumental Considerations
    E. The Unexamined Boundaries of Stare Decisis

II. Separation of Powers and Foreign Affairs
    A. The Constitution's Core Allocations of Authority in
       Foreign Affairs
    B. Judicial Reticence, Judicial Deference
    C. The Significant and Expanding Judicial
       Responsibilities in Foreign Affairs Lawmaking

III. Examining the Complicated Role of Stare Decisis in Foreign
     Affairs
    A. The Special Responsibility of the Judicial Station
    B. Destabilized Values: The Limits of Authority,
       Stability, and Legitimacy
       1. Stability and Exogenous Forces of Change:
          Unipolar Stare Decisis in a Multipolar System
       2. Expertise and the Risks of Error
    C. Separation of Powers, Stare Decisis, and Judicially
       Enforceable International Law
       1. Legitimacy of the Judicial Branch and the Blurring
          of Law-Finding with Lawmaking
       2. The Uneasy Role of Congress and the Availability
          of Legislative Override
       3. Accommodating the Executive Branch's Special
          Responsibilities in Foreign Affairs

IV. The Analysis Distilled: Integrating Stare Decisis and Foreign
    Affairs
    A. "Special Justifications" and Judicially Enforceable
       International Law
    B. Local Courts, International Obligations: The Special
       Demands for Stare Decisis Modesty in the Federal
       Courts of Appeals

Conclusion

INTRODUCTION

Stare decisis and the law of foreign affairs seem to inhabit entirely different jurisprudential worlds with no apparent means of communication. In matters of foreign affairs, the Supreme Court has often warned about the judicial branch's comparative lack of expertise and inability to gauge the implications of its judgments for external relations. (1) Separately, a web of deference doctrines and related interpretive presumptions function to protect against improvident judicial detours into foreign affairs, especially on matters of international law. (2) Together, these related considerations constitute admonitions to the courts about the unfamiliarity of the terrain and the consequent risks of judicial leadership in the field.

Curiously, however, these concerns seemingly evaporate once a court creates a precedent. An analysis of stare decisis jurisprudence fails to uncover any sensitivity to the special risks and "collateral consequences" (3) of judicial error in foreign affairs matters. That is, ex ante admonitions about improvident judicial action do not find even the faintest echo in the stare decisis force of judicial precedents ex post. My goal here is to mine this curiosity.

The proper role of the judicial branch in foreign affairs has provoked substantial scholarly debate--historical, institutional, and normative--since the founding of the Republic) In all of this discussion, however, the relationship between foreign affairs and stare decisis has been met with little comment (5) and no detailed analysis. Similarly, the Supreme Court has never seriously examined whether the prudential and institutional premises of stare decisis retain their validity in the field of foreign affairs, even for precedents that define the United States' sovereign obligations under international law. (6) Indeed, aside from including marginal notes in a pair of dissents, (7) the Court missed two prime opportunities to opine on the subject in the opening years of the twenty-first century. (8)

The analysis in this Article demonstrates that a more nuanced understanding of precedent is appropriate with respect to certain fundamental aspects of foreign affairs law. Judicial rulings on the Constitution's allocation of powers in the field are already subject to a less rigorous version of stare decisis. (9) In light of the practical impossibility of correction by the political branches, sound reasons support this outcome. (10) The special concern in this Article is instead the broad and expanding swath of controversies that likewise fall within the Article III "judicial Power" (11) but that involve the courts in the identification of rights or obligations under international law. Inquiries into such matters, by their nature, inject the judicial branch into the uncharacteristic position of leadership in defining the very content of the nation's formal legal relations with foreign states. My analysis demonstrates, moreover, that even the basic premises of stare decisis become unreliable, and in some respects fail to obtain at all, when courts create precedents on such matters.

In contrast, foreign-policy implications should not compromise the foundations of stare decisis for purely domestic statutes. When Congress takes it upon itself to define the entire content of the law-without importing international norms--the relationship between lawmaker and law applier is solely an internal, domestic affair. To be sure, congressional statutes, and thus judicial interpretations of them, may have consequences for foreign relations. (12) But fidelity to the value judgments first made by Congress within its constitutionally delegated authority should mitigate any concerns about independent judicial agency in foreign affairs lawmaking. Standard approaches to precedent founded on standard institutional relationships remain appropriate here. (13)

To establish the context for an analysis of these points, Part I first reviews the jurisprudential and institutional foundations of stare decisis. The force of a given precedent ultimately hinges on weighing the systemic values of stability, predictability, and judicial legitimacy against a set of situation-specific "antivalues" that focus on the precedent's original and continuing validity. But as I show in Part I, the notion of adherence to precedent is also animated by an appreciation of the respective constitutional stations of the judicial branch and Congress. That Part then explores the subtly important jurisdictional premises of stare decisis. Almost entirely overlooked by courts and scholars, these inherent jurisdictional limitations on the force of precedent have direct implications for the proper place of stare decisis in matters of international law.

The Constitution's special arrangement of authority over foreign affairs is the subject of the analysis in Part II. In this field as well, Congress remains the preeminent domestic lawmaker. But in its text and structure, the Constitution also allocates special responsibilities to the executive in managing the nation's relations with foreign states. This enhanced executive authority provides the backdrop for the web of admonitions about the risks of untutored judicial action in foreign affairs. The friction arises, however, from the expanding mandate of the courts to participate in the definition of rights and obligations under international law. To highlight the significance of this growing interbranch tension, Part II canvasses the multiplicity of avenues-treaties, "treaty-statutes," delegated lawmaking authority, "international law cure common law," (14) executive agreements, and metanorms of interpretation--through which the American legal system now channels such matters to the courts.

This all provides the foundation for an examination in Part III of the proper relationship between the Article III "judicial Power" in foreign affairs and the doctrine of stare decisis. That Part first explains why judicial enforcement of international law differs as a matter of kind, not merely of degree, from the application of law of a purely domestic origin. The necessary consequence of precedent in foreign matters is the definition of rights or obligations that govern the nation's legal relations with foreign states. Indeed, one might view international law as the "hardest" form of foreign relations law. (15) The gravity of this responsibility, properly appreciated, should alone give courts pause before reflexively cloaking foreign affairs precedents with full stare decisis effect.

Careful analysis reveals that the values that animate stare decisis become unstable when courts create precedents founded on international law. Even when legal norms have been validated by domestic authorities, their origin--the source from which they derive their content--remains the international legal system. And in contrast to the mechanisms for interpreting purely domestic statutes, the only mechanism for the interpretation and clarification of international law is a multipolar system of judicial cooperation that entirely lacks hierarchical integration.

As a result, the factual and doctrinal premises of a "final" decision on an international-law norm, even a decision by the U.S. Supreme Court, may be subject to almost immediate destabilization in the same legal system from which the norm emerged and in which it continues to operate. As Part III.B explores, this international legal structure again contrasts with standard congressional statutes. Unlike in the domestic realm, the disaggregated process of the interpretation and enforcement of international law creates substantial forces of judicial change exogenous to the domestic system and thus beyond the control of the Supreme Court. Moreover, the cultural, legal, linguistic, and related differences among international lawmakers greatly increase the risk of judicial error from the outset. These uncertainties combine to compromise the "calm" (16) that stare decisis is designed to secure and reinforce.

Consider as an illustration of this point the Supreme Court's series of cases on the domestic enforcement of certain individual rights protected by the Vienna Convention on Consular Relations. (17) In two initial decisions, the Court expressly determined that protected individuals could waive their treaty rights under domestic procedural rules. (18) Although definitive as a matter of domestic stare decisis, these decisions could not control even immediate developments under international law. Within only a few years, the International Court of Justice (ICJ) had interpreted the treaty in a directly contrary way (19) and had then ordered the United States to take certain remedial actions on behalf of affected individuals. (20) The ICJ authoritatively rejected the Supreme Court's interpretation of the international-treaty obligations of the United States. Unfortunately, however, in two subsequent cases, the Supreme Court refused to give effect to the ICJ's interpretation and thereby failed to recognize the inability of domestic stare decisis to create "calm" with respect to matters of international law. (21)

An institutional perspective on stare decisis also supports a more accommodating understanding of the proper force of international-law precedents. The enforcement of norms derived from international law, as I explain in Part III.C, involves a kind of problematic judicial discretion, and thus judicial leadership, that differs in essence from the application of purely domestic law. I then confront the most obvious and significant institutional counterargument: the availability of congressional override. Congress may well have the power to overturn a judicial precedent founded on international law, and perhaps even a precedent founded on the interpretation of treaties. (22) Nonetheless, this formal argument ultimately is based upon a legally suspect and factually unrealistic inversion of the Constitution's prescribed lawmaking sequence--Congress creates, the courts apply--for law Congress did not even create in the first place. Part III then concludes with an analysis of the proper means of calibrating stare decisis with the special responsibilities of the executive in foreign affairs.

The final Part distills the various themes into a summary analysis. I conclude that extant stare decisis norms remain appropriate for purely domestic statutes and regulations, even those that affect foreign affairs. My conclusions are different, however, for the judicial enforcement of international law. To be sure, even in that arena, the systemic and institutional values of stare decisis justify a prima facie respect for precedent. But the analysis in Part IV demonstrates that the distinctive considerations that attend judicial action involving international law should function as a significant weight on the scale--that is, as an additional "special justification" (23) for revisiting the original and continuing validity of a precedent. Enhanced modesty of this type should strengthen the institutional position of the judiciary, for it would permit, but not require, the reexamination of a precedent as an alternative to routine ex ante acquiescence to the executive branch's policy preferences.

The argument for increased flexibility toward international-law precedents is especially compelling for the federal courts of appeals. As they do for most matters, these regional courts create the vast bulk of precedents on international law. (24) Because of this reality, I address their particularly misguided, and nearly rigid, stare decisis practices in a separate section at the end of Part IV.

Over the years, an aphorism from Justice Brandeis has become a darling of stare decisis enthusiasts. "[I]n most matters," he declared, "it is more important that the applicable rule of law be settled than that it be settled right." (25) The analysis in this Article strongly suggests, however, that the significant and sensitive subject of our nation's international legal relations is not one of those routine "most matters." In any event, neither of Justice Brandeis's alternative propositions fully holds for disputed issues in the field of foreign affairs. The special circumstances in that field decrease substantially the likelihood that a first judicial impression actually will settle the matter or that it will be right in the first place.

I. THE FOUNDATIONS OF STARE DECISIS

A. Understanding the Notion of Precedent

For the common-law mind steeped in the tradition of progressive advancement on a foundation of progressively refined reason, there is a self-evident quality to the notion of precedent. Precedent appeals to primal desires for--and, in a system of laws, justified expectations of--rationality, regularity, and stability. (26) Indeed, Justice Cardozo's famous metaphor that judges merely "lay [their] own course of bricks on the secure foundation of the courses" of their forebears (27) is now so ingrained in common-law thinking as to seem almost trite. (28)

But stare decisis also marches in service of loftier causes. Stripped to its essence, the concept of binding precedent is a self-imposed rule-of-law norm for the judiciary. (29) That is, by constraining situational discretion, stare decisis reflects the proposition that objectively determined rules of law are binding on an independently constituted judicial branch. Stare decisis might even be a jurisprudential imperative. As Justice Breyer confidently declared in Randall v. Sorrell, (30) "[T]he rule of law demands that adhering to our prior case law be the norm." (31)

Self-evident propositions can be tricky things, however. The Constitution nowhere expressly empowers the federal judiciary to endow its own opinions with a legal force that binds subsequent courts. Since the Court's landmark holding in Erie Railroad Co. v. Tompkins, (32) moreover, "[f]ederal courts ... [have] not possess[ed] a general power to develop and apply their own rules of decision." (33) Stare decisis butts up against this principle as one approaches the more absolute edges of the notion of adherence to precedent. No matter how faithful a court may be in discerning the law established by others, communication across time, institutions, and circumstances inevitably involves uncertainty and, thus, choice. The power to interpret, in short, is infected with the temptation, and sometimes the need, to create. A version of stare decisis that would consecrate every legal ruling with unyielding permanence thus would transform judicial interpreters into lawmakers in every sense but name.

It should not be surprising, then, that the Supreme Court founds its modern canon of stare decisis not on constitutional compulsions or even powers but rather on prudential impulses anchored, as I have suggested, in the rule of law. (34) As is so often the case with this doctrine, the Court has a quotation of ancient lineage ready-made for any serious discussion of the issue: "[I]t is common wisdom," the Court has frequently observed, "that the rule of stare decisis is not an 'inexorable command.'" (35) It is, rather, "a principle of policy and not a mechanical formula of adherence to the latest decision." (36)

The word "policy" here, however, carries a serious risk of misdirection. To some skeptics, the absence of any absolute formula has served merely to open the gates for selective manipulation to suit judges' subjective predilections. (37) But the Supreme Court "[t]ime and time again" has emphasized the "fundamental importance" of stare decisis for the rule of law in our case-based system. (38) And as I demonstrate in Section B, this observation has teeth, for departure from precedent is considered an "exceptional" (39) move allowable only pursuant to a "compelling" justification." (40)

B. The Values that Animate Stare Decisis

The notion that judges should adhere to authoritative decisions of the past has a deep lineage in America's common-law heritage. (41) After two hundred years of domestic judicial pronouncements on the subject, (42) legal scholars have had ample source material for examinations of the foundations of stare decisis. (43) Thus, although a careful appreciation of the values that animate stare decisis is essential for my subsequent analysis of the proper role of the doctrine in the field of foreign affairs, a brief review will suffice here.

The Supreme Court itself settled some time ago on a customary formulation for the justification of stare decisis. According to the Court, the doctrine "promotes the evenhanded, predictable, and consistent development of legal principles." (44) Adherence to precedent likewise "fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." (45) When considered carefully, these broad values coalesce into three essential, interrelated categories: stability, predictability, and legitimacy. (46)

The most recognizable value of stare decisis is its ability to enhance stability and consistency across time and similar circumstances. (47) At its most elemental level, it satisfies the impulse that, all other things being equal, a legal system is better advised to resolve matters firmly and finally than to search for normatively more appealing solutions on a case-by-case basis. (48) In the same vein, adherence to precedent fosters the orderly and efficient administration of justice by discouraging successive relitigation of issues that have already been authoritatively resolved. (49)

Stability functions in tandem with predictability. Adherence to precedent establishes a framework for efficient public and private planning. (50) The resulting reliance interests, in turn, make out a compelling claim for legal protection. (51) Not surprisingly, this reasoning is particularly germane with respect to principles reaffirmed by "iteration and reiteration over a long period of time." (52)

Finally, stare decisis serves to sustain the public's trust in a principled, law-bound judiciary. In other words, adherence to precedent reinforces both the fact and the perception that in America's constitutional system, federal courts fundamentally are not lawmakers; their role, rather, is to identify and apply the objective rules of law that have been generated by the political branches. (53) In the words of Justice Thurgood Marshall, stare decisis "permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals." (54)

C. The Stare Decisis Antivalues: The Justifications for Reexamining Precedent

Under the combined weight of these considerations, the doctrine of stare decisis ultimately functions as a strong presumption against revisiting precedent. The Supreme Court has described this presumption in a variety of ways, but the basic thrust has been the same: stare decisis imposes a "severe burden" on those judges who are dissatisfied with established case law. (55) Disavowal of precedent thus is "exceptional" (56) and requires, as the Court has observed, "the most convincing of reasons." (57)

Nevertheless, the doctrine is one of prudence and pragmatism. Even supreme courts are fallible. To avoid both ossification in the law and unthinking adherence to past mistakes, a rational doctrine of precedent must leave some room for reconsideration. To this end, the Supreme Court has recognized what can be seen as a set of stare decisis antivalues, which balance the system by permitting the review and correction of conspicuous judicial misfires of the past.

Although the grounds for overruling precedent are easily stated, their application is necessarily highly specific to each particular situation. One standard consideration is whether a precedent has proved to be "unworkable" in practice. (58) On a similar note, reconsideration is appropriate when an earlier decision is seen as poorly reasoned from the outset or otherwise "has been the subject of continuing controversy and confusion." (59) When carefully considered, each of these related ideas is simply another way of saying that a particular precedent never succeeded in establishing the stability and predictability that justify stare decisis in the first place.

An even more significant consideration has been the influence of subsequent developments on the foundation of a precedent. Reevaluation of a precedent is justified when "facts have so changed, or [have] come to be seen so differently, as to have robbed the old rule of significant application or justification." (60) "Of most relevance," however, has been the effect of intervening developments in the law itself. (61) The "primary reason" for overruling precedent, the Supreme Court has declared, is that "either the growth of judicial doctrine or further action taken by Congress .... ha[s] removed or weakened the conceptual underpinnings from [a] prior decision." (62) Thus, for example, in the 2007 case of Leegin Creative Leather Products, Inc. v. PSKS, Inc., (63) the Court chronicled nearly one hundred years of corrosive case-law developments to justify overruling an established precedent on the per se invalidity of vertical price restraints. (64)

D. Institutional and Instrumental Considerations

A further fixture of stare decisis jurisprudence is perhaps the most important for understanding the doctrine in application. The Supreme Court has long held that stare decisis is most potent in statutory cases and is weakest in constitutional cases. (65) At its most elemental level, this distinction is grounded in the availability--both formally and practically--of alternative constitutional vehicles for error correction. Stated simply, when a court interprets a statute, the legislative branch is available to correct, update, or otherwise revise the judicial determination. Thus, as the Supreme Court has reiterated, "considerations of stare decisis weigh heavily in the area of statutory construction, where Congress is free to change this Court's interpretation of its legislation." (66) So potent is this principle that Justice Scalia has described it as an "almost categorical rule of stare decisis in statutory cases." (67)

The institutional landscape is quite different in constitutional cases. When the Supreme Court grounds a decision in the Constitution, the only vehicles for revision or adaptation are the Court itself and the amendment procedure of Article V. (68) Precisely because correction through the latter option "is practically impossible," (69) stare decisis in constitutional cases "is at its weakest." (70) Indeed, the Supreme Court has declared that constitutional precedents in foreign affairs matters in particular "afford little precedential value for subsequent cases." (71) To be sure, here as well the requirement of special justification remains. (72) Nonetheless, it is not uncommon for the Court to revisit even recent constitutional precedents, as its controversial decision in Citizens United v. FEC (73) demonstrated. (74)

The justification for differential application of stare decisis runs deeper, however, than the mere fact that expedient, nonjudicial sources of error correction are more readily available in cases of statutory interpretation than in cases of constitutional interpretation. Rather, the distinction finds essential color and texture in the courts' respect for the distinct constitutional allocations of authority to--and, presumably, the derivative institutional competences of--the judicial branch and Congress. The doctrine is thus animated not only by which institution is, but also by which institution should be, the principal source of continued development in a given field of law.

When a court interprets a statute, it operates against the backdrop of the legislative competence of Congress acting within its constitutionally founded lawmaking powers. The special force of stare decisis in statutory cases recognizes the primacy of Congress in Article I lawmaking by deferring to the original lawmakers for correction, adjustment, or modernization of their own legislative products. As the Supreme Court thus observed in Neal v. United States, (75) "Our reluctance to overturn [statutory] precedents derives in part from institutional concerns about the relationship of the Judiciary to Congress.... Congress, not this Court, has the responsibility for revising its statutes." (76)

In constitutional matters, by contrast, the Supreme Court "bears the ultimate obligation for the development of the law as institutions develop." (77) In other words, in a tradition derived from no less than Marbury v. Madison, (78) the Court has assigned itself ultimate authority over the meaning of the Constitution. (79) The judicial branch, therefore, is the institution with the independence and expertise to review--and, as appropriate, to correct and update--prior constitutional precedents.

The role of these institutional considerations in relation to the rare subject of federal common law is unclear. (80) Lacking guidance from the Supreme Court, some scholars assume that common-law decisions enjoy a "normal" level of precedential force. (81) Others take the view, in contrast, that the strong version of stare decisis for statutory decisions should apply to common-law precedents as well. (82) This matter, of course, will return to significance in my later review of "international law cum common law." (83) It suffices at this point to observe that the Supreme Court seemingly has endorsed a more relaxed version of the doctrine of stare decisis when courts take the lead in developing the law based on a corresponding delegation of authority from Congress. (84)

E. The Unexamined Boundaries of Stare Decisis

Finally, inherent in the doctrine of binding precedent is a principle that courts and scholars have almost entirely overlooked: stare decisis is inseparably bound up in, and constrained by, the concept of jurisdiction. As I explain, I use the term "jurisdiction" in its essential sense of the realm of authority within which a court has the power to declare the law. Alexander Hamilton once aptly parsed the concept in the same way. "[J]urisdiction," he observed, "is composed of JUS and DICTO, juris, dictio, or a speaking or pronouncing of the law." (85)

Courts of law derive their power to issue authoritative rulings from a particular polity. They are, in the first instance, legally constituted by such a polity. (86) At a more immediate and concrete level, this foundational source of power also defines whether a court has adjudicative authority--in American legal idioms, subject-matter and personal jurisdiction--over a particular dispute. (87) When so constituted and when within their legal mandate, courts exercise a distinct function on behalf of their state: in Montesquieu's famous allocation, the "power of judging" over individual controversies. (88) It is thus not by accident that the Constitution vests "the judicial Power of the United States" in the Supreme Court and "in such inferior courts as the Congress may from time to time ordain and establish." (89)

Woven into this notion of judicial power is the authority to resolve disputed issues of law in a binding and--for the common-law mind at least (90)--final manner. This authority exists, however, only within the framework of the legal system from which the declaring court has derived its mandate. Although tautological, one may find insight in the observation that a court has the power to create precedent only within the legal system for which it has the power to speak with finality. The Supreme Judicial Court of Massachusetts, for example, could no more make binding pronouncements for New York courts on the law of New York than the legislature of Massachusetts could validly empower this highest court of Massachusetts to do so in the first place. (91)

In the federal realm, the Constitution itself recognizes this principle with a simple, but subtly powerful, two-letter preposition: it vests in the federal Supreme Court "the judicial Power of the United States"--not, for example, "in" the United States. (92) For this reason, even the Supreme Court lacks the authority to create precedent concerning the law of a state that is binding on the internal organs of that state. (93)

Courts and scholars alike have almost entirely overlooked this essential jurisdictional premise of stare decisis. Nonetheless, a careful focus on this embedded limitation affords important insights into the values that animate the doctrine. One may properly speak of stability, predictability, and legitimacy from precedent precisely because a superior court--and ultimately a court of last instance--is able to speak with final authority on the law within its defined jurisdiction. It is this final authority, in other words, that creates and reinforces the value of "calm" at the foundation of stare decisis. (94)

This consideration in turn requires fidelity in both the doctrine's vertical and horizontal dimensions. (95) When a polity constitutes inferior courts with the same jurisdiction, (96) a functional concept of stare decisis requires that these courts be tied into a hierarchically integrated system with opportunities for oversight by superior courts. The great bulk of judging is done by lower courts. Vertical stare decisis thus especially serves the core values of system stability and predictability, for it is by this means that the precedents of superior courts have practical effect through mandatory adherence by inferior courts throughout the system.

Horizontal stare decisis, by contrast, addresses the force of a precedent on the issuing court itself and thus has special significance for the value of judicial legitimacy. (97) The requirement that even a supreme court identify compelling grounds before reexamining its own precedent reinforces the appearance of a principled, law-bound judiciary. (98) Presumably, moreover, the most reliable judicial expertise on the internal law of a particular jurisdiction, as well as on the legal influence of subsequent developments, is housed in the jurisdiction's own highest court.

The ability of stare decisis to advance these values depends decisively on the power of precedent to control change. In a vertically integrated system protected by horizontal fidelity to precedent, systemic stability flows from the premise that all forces of legal change are endogenous to the system. Faithfully observed, stare decisis removes any incentives for corrosive relitigation of precedents and thus avoids the destabilizing effects of judicial reexamination. (99) Once a supreme judicial authority has established a precedent within its jurisdictional mandate, the only source of future legal change-save permissible, prospective overrides by the legislature or other lawmaking institutions--should be the same court. (100) It is for this reason that intervening developments in the law--the stare decisis antivalue "of most relevance" (101)--commonly occur only through erosion at the edges of a precedent over a substantial period of time. (102)

This perspective makes sense within the framework of a modern nation-state with an independent and hierarchically integrated judicial branch. The Supreme Court, as the ultimate repository of the federal judicial power, is able to speak with finality within the scope of federal law and thereby to control all forces of legal change within the domestic federal judicial system. As my analysis explores further, however, matters become considerably more opaque and complex when one reflexively extends the jurisdictional premises of stare decisis to a multipolar legal order. Such is the case with international law. In this realm, the reality of a multipolar system of judicial cooperation that entirely lacks hierarchical integration means that the international legal order has no means to create or maintain systemwide uniformity. (103)

To properly emphasize the implications of this fact, I first return to the Constitution's core allocation of powers over foreign affairs. This foundation permits a deeper exploration of the special responsibilities of the judicial branch when international-law rights and obligations fall within its domestic power to declare the law--that is, when they fall within its "juris dictio." (104)

II. SEPARATION OF POWERS AND FOREIGN AFFAIRS

The boundaries of the federal judicial power are nowhere more elusive and elastic than in the field of foreign affairs law. As a general proposition, the Constitution does not require a "hermetic division among the Branches," (105) nor does it require that "the three branches of Government 'operate with absolute independence.'" (106) Nonetheless, as I demonstrate in this Part, the Constitution's special arrangement of the "dispersed powers" (107) of government in the field of foreign affairs creates even greater challenges for the "duty of the judicial department to say what the law is." (108)

I begin in Section A with a review of the foundational allocations of authority over foreign affairs in the American constitutional structure. Section B then examines the institutional and prudential reasons for judicial caution in this important field. Section C concludes with a comprehensive analysis of the myriad ways in which the modern American legal system nonetheless channels foreign affairs matters, including fundamental issues of international law, to the federal courts.

A. The Constitution's Core Allocations of Authority in Foreign Affairs

Although the Constitution's general scheme of authority is well known, a reminder of the distinctive …