Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Author Meets Reader: 'International Law in the U.S. Supreme Court: Continuity and Change'

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Author Meets Reader: 'International Law in the U.S. Supreme Court: Continuity and Change'

Article excerpt

This panel was convened at 9:00 a.m., Saturday, March 26, by its moderator, Ingrid Wuerth of Vanderbilt University Law School, who introduced the panelists: Mary Dudziak of the University of Southern California, Gould School of Law; Lori Damrosch of Columbia Law School; and David Sloss of Santa Clara University School of Law.

Two CENTURIES OF INTERNATIONAL LAW IN THE U.S. SUPREME COURT

By David Sloss

International Law in the U.S. Supreme Court: Continuity and Change is a volume that I co-edited with Michael Ramsey and William Dodge. (1) A group of distinguished scholars contributed chapters and/or essays for the project. Collectively, their contributions present a comprehensive account of the evolution of international law doctrine in the U.S. Supreme Court from the Court's inception to 2010. The book examines all the lines of cases in which international law has played a material role, showing how and when the Court's treatment of international law changed over the past two centuries.

The main goal of the book is descriptive, not prescriptive. My co-editors and I knew before we started the project that international law doctrine in the Supreme Court today is very different than it was in the early nineteenth century. Our goal was to describe the Court's application of international law in the nation's early years, and then describe doctrinal changes over time, focusing on what changed and when key changes occurred. The book says very little about why key changes occurred, but it does establish a solid foundation for other scholars to debate the "why" questions. Scholars cannot have an intelligent debate about why doctrine changed without first ascertaining what changed and when those changes occurred.

THE STRUCTURE OF THE BOOK

The book divides U.S. constitutional history into five time periods: 1789-1860, 18611900, 1901 - 1945, 1946-2000, and 2001-2010. Part One cons sts of a single chapter, authored by the three co-editors, which covers the period from 1789 to 1860. That chapter establishes a baseline from which to gauge future changes. Other scholars have written extensively about the Court's application of international law in the nation's early years. Accordingly, Part One provides a fairly abbreviated account of the Court's application of international law in the pre-Civil War period, while providing extensive citations to other scholarship for readers who want to dig deeper. (2)

Parts Two to Four, respectively, cover the periods 1861-1900, 1901-1945, and 1946-2000. The Supreme Court's application of international law between the Civil War and World War II has not previously been studied in great detail. The book makes a major contribution by filling this gap in prior scholarship. Parts Two to Four each consist of four chapters: one on treaties; (3) one on customary international law; (4) one on the use of international law as an interpretive tool; (5) and one historical commentary. (6) The chapters on treaties, custom, and interpretation are primarily doctrinal. In contrast, the historical commentary chapters link the doctrinal developments in a given era to broader historical trends during that time period.

Part Five examines the first decade of the twenty-first century. It is divided into five subparts addressing treaties, (7) customary international law, (8) international law in constitutional interpretation, (9) international law in statutory interpretation, (10) and the war on terror. (11) Given the many international law cases decided by the Supreme Court over the past decade, and the sharp controversy surrounding some of those decisions, we decided to present contrasting viewpoints on the main decisions. Therefore, each sub-part includes one main essay and two shorter response essays that present alternative perspectives on key cases.

Part Six presents conclusions. Written by the three co-editors, it provides a concise summary of the most important changes in the Court's international law doctrine over the past two centuries. …

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