Academic journal article Duke Journal of Comparative & International Law

The Supremacy Clause as Structural Safeguard of Federalism: State Judges and International Law in the Post-Erie Era

Academic journal article Duke Journal of Comparative & International Law

The Supremacy Clause as Structural Safeguard of Federalism: State Judges and International Law in the Post-Erie Era

Article excerpt

Against a backdrop of state constitutional and legislative initiatives aimed at limiting judicial use of international law, this Article argues that state judges have, by and large, interpreted treaties and customary international law so as to narrow their effect on state law-making prerogatives. Where state judges have used international law more liberally, they have done so to give effect to state executive and legislative objectives. Not only does this thesis suggest that the trend among state legislatures to limit state judges' use of international law is self-defeating, it also gives substance to a relatively unexplored structural safeguard of federalism: state judges' authority under the Supremacy Clause to harmonize treaties and customary international law with state constitutional, legislative, and common law, and to influence federal jurisprudence on the scope and effect of binding international law. The Supremacy Clause empowers state judges to adapt international law to maximize benefits for--and minimize disruptions to-state policy objectives. As more areas of traditional state authority are displaced by international law, state judicial management of international law may be the strongest structural protection for state interests.



     A. Hague Service Convention
        1. State Judicial Limitation of the Treaty's Scope
        2. State Judicial Expansion of Alternative Means of Service to
           Facilitate Access to State Courts
     B. Hague Evidence Convention
        1. State Judicial Circumscription of the Treaty: the First
           Resort Rule
        2. Using the Hague Evidence Treaty to Give Effect to
           Plaintiffs' Choice of State Forum

     A. Contracts which Specify both a State Forum and Choice of
        International Law
     B. U.N. Convention on Contracts for the International Sale of

     A. Valdez v. State: Incorporating Evidentiary, but not
        Preemptive, Effects from the Vienna Convention on Consular
     B. Torres v. State: Defining "Prejudice" under the Vienna
        Convention on Consular Relations under State, not Federal
        or International, Law

     A. Hague Abduction Convention
     B. The Hague Abduction Convention as a Lesson in the Judicial
        and Political Safeguards of Federalism



For most of American history, U.S. states have maintained an ambivalent relationship with international law. After they successfully cooperated in their military rejection of British rule, the states welcomed the attributes of sovereignty transferred to them under the law of nations as it existed in 1783. (1) In the early post-war period, however, the states used their sovereign powers in ways that strained the unity of the new confederation. (2)

   After the War for Independence, [t]he "States passed tariff laws
   against one another as well as against foreign nations; and,
   indeed, as far as commerce was concerned, each State treated the
   others as foreign nations. There were retaliations,
   discriminations, and every manner of trade restrictions and
   impediments which local ingenuity and selfishness could devise."
   Disputes between the States over border lands and overlapping land
   grants generated as much, if not more, hostility ... including
   periodic border skirmishes between settlers from different States.
   And conflicting claims to lucrative prize ships and spoils of war
   seized on the high seas were yet another source of high tension
   among the States. (3)

Although the Articles of Confederation prohibited states from entering into any "agreement, alliance or treaty" with foreign powers and, separately, provided that "no two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of [Congress]," (4) the states regarded the Articles themselves as a treaty among sovereigns. …

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