Sidebar Publishes Response to The Federal Common Law of Nations

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Columbia Law Review‘s Sidebar is pleased to announce the publication of a response to The Federal Common Law of Nations by Anthony J. Bellia Jr. and Bradford R. Clark.

In their Article Professors Bellia and Clark describe the role that the law of nations has played throughout American history. They argue that federal courts have not viewed enforcement of the law of nations as an Article III power to fashion federal common law, but have instead applied rules derived from the law of nations as a way to implement the political branches’ Article I and Article II powers to recognize foreign nations, conduct foreign relations, and decide momentous questions of war and peace. This allocation of powers approach, they contend, best explains the most important federal cases involving the law of nations across American history.

Professor Ernest Young’s Response questions the historical account provided by Bellia and Clark on two grounds: first, that the debate over reception of the common law at the federal Constitutional Convention shows greater early skepticism about judge-made common law than Bellia and Clark suggest; and second, that the jurisdictional provisions of Article III covering cases implicating foreign affairs were not intended fully to centralize power over such cases in federal courts because they left concurrent jurisdiction in the state courts. In addition Professor

Young questions the extent to which the Founding Era history is directly relevant to contemporary debates about how to treat customary international law (CIL). He contends that what does the real work in the Bellia and Clark approach is simply constitutionally-grounded concerns about the separation of powers in foreign affairs cases, not anything about CIL per se.

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