Foreign Relations Law in the Roberts Court: The First Decade

Proceedings of the Annual Meeting-American Society of International Law, Annual 2015 | Go to article overview

Foreign Relations Law in the Roberts Court: The First Decade


This panel was convened at 9:00 a.m., Thursday, April 9, by its moderator David Moore of Brigham Young University Law School, who introduced the panelists: Melissa Arbus Sherry of Latham & Watkins LLP; Harlan Cohen of University of Georgia School of Law; Jean Galbraith of University of Pennsylvania Law School; and Ganesh Sitaraman of Vanderbilt University Law School.

INTRODUCTORY REMARKS BY DAVID H. MOORE *

In its first decade, the Roberts Court has decided a host of foreign relations law cases. These cases have addressed a wide range of issues, including foreign sovereign and foreign official immunity (Republic of Argentina v. NML Capital, Ltd. (2014); Samantar v. Yousuf (2010); Permanent Mission of India v. City of New York (2007)); treaty self- execution (Medellin v. Texas (2008)); treaty interpretation, including in the face of a ruling from the International Court of Justice (Abbott v. Abbott (2010); Sanchez-Llamas v. Oregon (2006)); statutory and constitutional habeas rights of detainees (Boumediene v. Bush (2008); Munaf v. Geren (2008)); the legality of trying detainees by military commission (Hamdan v. Rumsfeld (2006)); preemption of state law bearing on foreign affairs (Arizona v. United States (2012); Chamber of Commerce v. Whiting (2011)); personal jurisdiction over foreign defendants and concerning foreign events (Daimler AG v. Bauman (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown (2011); J. McIntyre Machinery, Ltd. v. Nicastro (2011)); the extraterritorial reach of federal statutes and common law causes of action (Kiobel v. Royal Dutch Petroleum Co. (2013); Morrison v. National Australia Bank Ltd. (2010)); application of the political question doctrine (Zivotofsky v. Clinton (2011)); the scope of arbitration under a bilateral investment treaty (BG Group PLC v. Republic of Argentina (2014)); and the interpretation of treaty implementing legislation and other legislation relating to foreign affairs (Bond v. United States (2014); Kirtsaeng v. John Wiley & Sons, Inc. (2013); Mohamad v. Palestinian Authority (2012)).

These cases provide an opportunity to address whether the Roberts Court--with its four new Justices (Roberts, Alito, Sotomayor, and Kagan)--has departed from the foreign relations law jurisprudence of prior Courts. Certain scholars, including two members of this panel, have suggested that the Court has. This panel explores that question.

* Professor of Law at Brigham Young University, J. Reuben Clark Law School.

FOREIGN RELATIONS LAW AND THE ROBERTS COURT: AN APPELLATE PRACTITIONER'S PERSPECTIVE

By Melissa Arbus Sherry ([dagger])

I want to first thank Dave Moore and Bill Dodge for having me here and for organizing this panel. My role on this panel is to offer insights into the United States Supreme Court's (the Court) foreign relations cases not from an academic perspective, but rather from a practitioner's perspective. More specifically, I approach the cases as an appellate practitioner who, at times, works on international law cases--not as an international law practitioner or specialist. In that respect, my generalist vantage point is hopefully in line with that of the Justices and the lower courts when foreign relations cases appear on their respective dockets.

The Roberts Court's "foreign relations" jurisprudence includes an incredibly broad brush of cases that touch on very different subject matters and involve very different legal doctrines. As a practitioner, I find it difficult to view these cases as an undifferentiated whole. Instead, for me, the cases fit within larger trends emblematic of the Roberts Court. Some straddle different categories. And some are more difficult to classify than others. Viewed this way, the case law suggests that the presence of a foreign relations issue is not determinative of how a case will be decided. To be sure, the Court is no longer willing to defer to the political branches to the same extent it has in the past. …

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