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According to Judge Fletcher, the Court answered two questions in Sosa v. Alvarez-Machain. First, there is a limited federal common law of international human rights based on customary international law. Second, that federal common law is both jurisdiction-conferring in the sense of “arising under” federal law, and supreme in the sense of the Supremacy Clause. Professors Jack Goldsmith and Curtis Bradley, among others, had raised questions about the legitimacy of the line of human rights cases based on customary international law that began with the Second Circuit’s 1980 decision in Filartiga v. Pena-Irala. The Court’s response was that, within the scope of the federal common law permitted by Sosa, Filartiga remains good law.
However, the Supreme Court in Sosa did not answer questions about the possible preemptive scope of the federal common law on international human rights. Judge Fletcher explores three examples—(1) a wholly international case in which an alien sues another alien for a violation of international human rights abroad; (2) a partially international case in which an alien sues an American corporation for such a violation abroad; and (3) a wholly domestic case in which a defendant in a American court contends that a State’s death penalty violates international human rights. Judge Fletcher points out that these preemption questions are going to arise in both state and federal courts. He further points out that the federal courts may, in some cases not covered by federal common law, be required by Erie Railroad v. Tompkins to follow state courts’ decisions on questions of international human rights.
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By Anthony J. Bellia Jr.
In Sosa v. Alvarez-Machain, the Supreme Court attempted to reconcile congressional expectations in the Alien Tort Statute ("ATS") that federal courts could exercise jurisdiction over certain violations of general law with Erie, the case that, in principle, rejects the existence of general law. The Court concluded that the ATS confers jurisdiction on federal courts over certain actions governed by customary international law. It is axiomatic that, to determine their jurisdiction, federal courts must assess not only whether Congress has given them jurisdiction, but whether under Article III Congress may give that jurisdiction. There are serious questions about whether Article III authorizes Congress to give the jurisdiction that the Sosa Court defined the ATS to have given.
This paper argues that for the same legitimacy concerns that inhered in its analysis of congressional expectations in Sosa, the Court should reconcile its determination that the ATS gives federal courts jurisdiction over certain claims governed by customary international law with its understanding in Osborn v. United States that the Constitution does not empower Congress to give federal courts jurisdiction over cases governed by general law absent an actual federal "ingredient."
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By Ernest A. Young
Every academic can name an article or two that they wish they had written, and for me the top of that list has always been occupied by Judge William Fletcher’s “The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance.” Judge Fletcher’s essay is the best thing we have on the phenomenon of “general common law”—the law applied by both state and federal courts to commercial disputes before the regime of Swift v. Tyson gave way to that of Erie Railroad Co. v. Tompkins. The general common law was a form of customary international law (“CIL”); hence, the nature of the general law regime and the precise sense in which Erie altered that regime lie at the heart of contemporary debates about enforcement of a different kind of customary law—international human rights principles—in U.S. courts. Commenting upon Judge Fletcher’s reading of Sosa v. Alvarez-Machain, the leading recent case on human rights claims under CIL, is thus a task that I approach with both great honor and some trepidation. Fortunately, our differences are less important than our areas of common ground.
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By John Harrison
Judge William Fletcher, when he was Professor Fletcher, brought to his field a change close to a revolution, restoring general law to the conceptual universe and demonstrating the historical and theoretical inadequacy of the unsophisticated version of the Erie doctrine that had become dominant. By restoring the role of general law in the ontology of American jurisprudence, he both improved our understanding of earlier thinking and opened up possibilities that had been closed to those who thought that every legal norm must be the creation of some identifiable sovereign.
I will focus on one of the questions [that Judge Fletcher's essay] leaves open, in an attempt to clarify the considerations that have driven the Court to conclude, in the face of text, structure, and history, that some unwritten norms are laws of the United States as that term is used in the Constitution. The question is whether this latest bit of the new federal common law, the bit that incorporates some of the law of nations, is federal law for purposes of Article VI as well as Article III. I will argue that it will have to be so regarded, and that the reasons for that conclusion help expose the complexities, not to say inanities, that follow from the Court’s decision to deny the separate existence of general law and absorb much of it into federal law.
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