Jack Landman Goldsmith

Henry L. Shattuck Professor of Law

Areeda 233

617-384-8159

Assistant: Jan Qashat / 617-496-2026

Biography

Jack Goldsmith is Henry L. Shattuck Professor of Law at Harvard University. He is the author, most recently, of The Terror Presidency: Law and Judgment Inside The Bush Administration (W.W. Norton 2007), as well as of other books and articles on many topics related to terrorism, national security, international law, conflicts of law, and internet law. Before coming to Harvard, Goldsmith served as Assistant Attorney General, Office of Legal Counsel, from October 2003 through July 2004, and Special Counsel to the General Counsel to the Department of Defense from September 2002 through June 2003. Goldsmith taught at the University of Chicago Law School from 1997-2002, and at the University of Virginia Law School from 1994-1997. He holds a J.D. from Yale Law School, a B.A. and M.A. from Oxford University, and a B.A. from Washington & Lee University. He clerked for Supreme Court Justice Anthony M. Kennedy, Court of Appeals Judge J. Harvie Wilkinson, and Judge George Aldrich on the Iran-U.S. Claims Tribunal.

Areas of Interest

Jack L. Goldsmith, Power and Constraint: The Accountable Presidency After 9/11 (W.W. Norton & Co. 2012).
Categories:
Government & Politics
Sub-Categories:
Government Accountability
,
Executive Office
,
National Security Law
Type: Book
Abstract
Conventional wisdom holds that 9/11 sounded the death knell for presidential accountability. In fact, the opposite is true. The novel powers that our post-9/11 commanders in chief assumed—endless detentions, military commissions, state secrets, broad surveillance, and more—are the culmination of a two-century expansion of presidential authority. But these new powers have been met with thousands of barely visible legal and political constraints—enforced by congressional committees, government lawyers, courts, and the media—that have transformed our unprecedentedly powerful presidency into one that is also unprecedentedly accountable. These constraints are the key to understanding why Obama continued the Bush counterterrorism program, and in this light, the events of the last decade should be seen as a victory, not a failure, of American constitutional government. We have actually preserved the framers’ original idea of a balanced constitution, despite the vast increase in presidential power made necessary by this age of permanent emergency.
Jack L. Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (W.W. Norton & Co. 2007).
Categories:
Government & Politics
,
Criminal Law & Procedure
Sub-Categories:
Terrorism
,
Executive Office
,
National Security Law
Type: Book
Abstract
The author's duty as head of the Office of Legal Counsel was to advise President Bush what he could and could not do...legally. The author took the job in October 2003 and began to review the work of his predecessors. Their opinions were the legal framework governing the conduct of the military and intelligence agencies in the war on terror, and he found many—especially those regulating the treatment and interrogation of prisoners—that were deeply flawed. The author is a conservative lawyer whose unflinching insistence that we abide by the law put him on a collision course with powerful figures in the administration. This book provides his analysis of parallel legal crises in the Lincoln and Roosevelt administrations, which shows why Bush's apparent indifference to human rights has damaged his presidency and, perhaps, his standing in history.
Jack L. Goldsmith & Eric Posner, The Limits of International Law (Oxford Univ. Press 2005).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Executive Office
,
International Law
,
Foreign Relations
Type: Book
Abstract
In this book, Jack Goldsmith and Eric Posner argue that international law matters, but that it is less powerful and less significant than public officials, legal experts, and the media believe. International law, they contend, is simply a product of states pursuing their interests on the international stage. It does not pull states towards compliance contrary to their interests, and the possibilities for what it can achieve are limited. This book has important implications for debates about the role of international law in the foreign policy of the United States and other nations.
Jack Goldsmith, Yes, We Are Holding Trump Accountable, N.Y. Times, Mar. 15, 2017, at A23.
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Executive Office
Type: News
Abstract
The article discusses the investigation conducted by the U.S. Federal Bureau of Investigations (FBI) with its director James B. Comey on the involvement of Russiaa in the 2016 U.S. presidential elections.
Jack Goldsmith & Matthew C. Waxman, The Other Forever War, Hoover Dig., Winter 2017, at 92.
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Terrorism
,
National Security Law
,
Executive Office
Type: Article
Abstract
The article presents a reprint of the article "The Other Forever War" by Jack Goldsmith and Matthew C. Waxman, which appeared in the "Time" magazine. It discusses the comprehensive and sustained counterterrorism strategy launched by the U.S. against the Islamic State terrorist group under the administration of President Barack Obama. The controversial use of the 2001 Authorization to Use Military Force (AUMF) as the legal foundation for war against the Islamic State was noted.
Jack L. Goldsmith & Curtis Bradley, Obama’s AUMF Legacy (Aug. 24, 2016).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Executive Office
,
Military, War, & Peace
,
National Security Law
,
International Law
Type: Article
Abstract
Despite massive changes in the geographical scope of the conflict that began on 9/11, the strategy and tactics employed, and the identity of the enemy, the 2001 Authorization for Use of Military Force (“AUMF”) remains the principal legal foundation under U.S. domestic law for the President to use force against and detain members of terrorist organizations. For many years, President Obama proclaimed that he wanted to repeal the AUMF and end the AUMF-authorized conflict. By the closing year of his presidency, however, his administration had established the AUMF as the legal foundation for an indefinite conflict against Al Qaeda and associated groups and extended that foundation to cover a significant new conflict against the Islamic State. This transformation of the AUMF is one of the most remarkable legal developments in American public law in the still-young twenty-first century, and it will stand as one of President Obama’s primary legal legacies. In addition to establishing this descriptive claim, this Essay considers how the Obama administration has invoked international law in making arguments about the scope of the AUMF. As the Essay explains, although the Obama administration often maintained that international law was an important constraint on its actions, on a range of issues where international law was unsettled it interpreted it in ways that supported presidential discretion and flexibility under the AUMF.
Jack L. Goldsmith & John F. Manning, The Protean Take Care Clause, 164 U. Pa. L. Rev. 1835 (2016).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Executive Office
,
Separation of Powers
,
Supreme Court of the United States
Type: Article
Curtis Bradley & Jack L. Goldsmith, Don’t Let Americans Sue Saudi Arabia, N.Y. Times, Apr. 22, 2016, at A27.
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Sovereign Immunity
,
National Security Law
,
International Law
Type: News
Abstract
The author reflects on the issue of advancing a bill to the U.S. Congress which aim to expose Saudi Arabia to a lawsuit in U.S. courts alleging the country's connection in the 9/11 terrorist attack, citing concerns on its implication on diplomatic and economic relation between the countries.
Jack L. Goldsmith & Matthew Waxman, The Legal Legacy of Light-Footprint Warfare, 39 Wash. Q. 7 (2016).
Categories:
Government & Politics
Sub-Categories:
Military, War, & Peace
Type: Article
Jack Goldsmith, Is the U.S. a Hypocrite on Iran Cyberattack?, Time, Mar. 25, 2016, at 39.
Categories:
Government & Politics
,
Technology & Law
Sub-Categories:
National Security Law
,
Cyberlaw
Type: Article
Jack L. Goldsmith, The Contributions of the Obama Administration to the Practice and Theory of International Law, 57 Harv. Int’l L.J. 456 (2016).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Executive Office
,
International Law
,
Foreign Relations
,
Treaties & International Agreements
Type: Article
Abstract
With this essay, Professor Goldsmith provides a tour of the horizon of the Obama administration's international law record in order to identify the distinctiveness of its approach and to tie it in to some general themes in international and foreign relations law. He describes what is interesting and distinctive about the Obama administration's approach to international law by considering its practices through the lens of the two mechanisms through which a president and his team can influence international law: the interpretation of international law commitments, and the use of tools of diplomacy to contribute to the making of new international agreements.
Jack L. Goldsmith, The Ends of Privacy, New Rambler Rev., Apr. 06, 2015 (reviewing Bruce Schneier, Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World (2015)).
Categories:
Technology & Law
Sub-Categories:
Information Privacy & Security
Type: Article
Lea Brilmayer, Jack L. Goldsmith & Erin O’Hara, Conflicts of Laws: Cases and Materials (Aspen 7th ed. 2015).
Categories:
Civil Practice & Procedure
Sub-Categories:
Conflict of Laws
Type: Book
Abstract
The books starts with a discussion of traditional approaches to choice-of-law problems, followed by an examination how modern courts and commentators have struggled to formulate more responsive approaches.
Jack L. Goldsmith, Zivotofsky II as Precedent in the Executive Branch, 129 Harv. L. Rev. 112 (2015).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Executive Office
,
Foreign Relations
Type: Article
Jack L. Goldsmith, A Just Act of War, N.Y. Times. Sept. 30, 2011.
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Terrorism
,
Executive Office
,
National Security Law
,
Military, War, & Peace
Type: News
Abstract
On Friday, an American drone flying over northern Yemen killed Anwar al-Awlaki, a leader of Al Qaeda in the Arabian Peninsula -- a Qaeda affiliate. Mr. Awlaki helped support an attempted attack on a Detroit-bound flight in 2009 and had been linked to other attempted attacks in the United States.
Jack L. Goldsmith, Don't Try Terrorists, Lock Them Up, N.Y. Times, Oct. 9, 2010, at 21.
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Terrorism
,
Military, War, & Peace
,
National Security Law
,
Courts
Type: News
Abstract
THE Obama administration wants to show that federal courts can handle trials of Guantanamo Bay detainees, and had therefore placed high hopes in the prosecution of Ahmed Khalfan Ghailani, accused in the 1998 bombings of American embassies in East Africa. On Wednesday a federal judge, Lewis Kaplan of the United States District Court in Manhattan, made the government's case much harder when he excluded the testimony of the government's central witness because the government learned about the witness through interrogating Mr. Ghailani at a secret overseas prison run by the C.I.A.
Jack L. Goldsmith, A Way Past the Detention Gridlock, Wash. Post, Sept. 10, 2010, at A25.
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Terrorism
,
Executive Office
,
Courts
,
National Security Law
,
Military, War, & Peace
Type: News
Jack L. Goldsmith & Lawrence Lessig, Anti-counterfeiting Agreement Raises Constitutional Concerns, Wash. Post, Mar. 26, 2010.
Categories:
Government & Politics
,
Technology & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Government Transparency
,
Executive Office
,
International Trade
,
Intellectual Property Law
Type: Article
Curtis A. Bradley & Jack L. Goldsmith, Foreign Sovereign Immunity and Domestic Officer Suits, 13 Green Bag 2D 137 (2010).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Congress & Legislation
,
Foreign Relations
,
Human Rights Law
Type: Article
Abstract
Under international law, official-capacity suits brought against a foreign state’s officers are treated as suits against the state itself and thus as subject to the state’s immunity, even in suits alleging human rights abuses. This immunity regime differs from the immunity regime that applies in the United States in suits brought against state and federal officials for violations of federal law. Despite the federal government’s sovereign immunity and the immunity of state governments under Eleventh Amendment jurisprudence, courts often allow suits against federal and state officers for their official actions. This essay attempts to explain why the immunity rules differ between the two regimes. We begin by showing that the differential treatment of foreign and domestic officer suits has deep roots in British and American common law. We then show that Congress has not acted to alter this common law backdrop, and we explain the significance of this fact. Finally, we discuss functional reasons for the long-time differential treatment of suits against domestic and foreign officials.
Jack L. Goldsmith, Defend America, One Laptop at a Time, N.Y. Times, July 2, 2009, at 23.
Categories:
Government & Politics
,
Technology & Law
Sub-Categories:
National Security Law
,
Information Privacy & Security
,
Networked Society
,
Cyberlaw
Type: News
Abstract
Our economy, energy supply, means of transportation and military defenses are dependent on vast, interconnected computer and telecommunications networks. These networks are poorly defended and vulnerable to theft, disruption or destruction by foreign states, criminal organizations, individual hackers and, potentially, terrorists. In the last few months it has been reported that Chinese network operations have found their way into American electricity grids, and computer spies have broken into the Pentagon's Joint Strike Fighter project.
Jack L. Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 Harv. L. Rev. 1791 (2009).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Government & Politics
Type: Article
Bradley A. Curtis & Jack L. Goldsmith, Foreign Relations Law: Cases and Materials (Aspen 3rd ed. 2009).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Foreign Relations
Type: Book
Abstract
Features: Reorganizes the material into three thematic parts, concerning the government institutions that interact with foreign relations law, the role of international law in the U.S. legal system, and the legal issues associated with ...
Curtis A. Bradley & Jack L. Goldsmith, Foreign Sovereign Immunity, Individual Officials, and Human Rights Litigation, 13 Green Bag 2D 9 (2009).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Congress & Legislation
,
Foreign Relations
,
Human Rights Law
Type: Article
Abstract
For thirty years, international human rights litigation in U.S. courts has developed with little attention to a lurking doctrinal objection to the entire enterprise. The paradigm international human rights case involves a suit against a foreign government official for alleged abuses committed abroad under color of state law. A potentially dispositive objection to this litigation is foreign sovereign immunity. The Foreign Sovereign Immunities Act (FSIA) creates presumptive immunity for foreign states and has no exception that would cover human rights cases. Many courts have assumed that the FSIA has no relevance to human rights suits as long as they are directed against state officials rather than the state itself. Recently, however, courts have begun to reject this assumption, and the issue is now before the Supreme Court in Yousuf v. Samantar. This essay makes two contributions to the debate over whether the FSIA applies to suits against individual foreign officials. First, it shows that, contrary to what some courts have assumed, suits against individual officials fall naturally within the plain language of the FSIA’s immunity provisions. Second, it shows that the international law of state immunity, which is relevant to the proper interpretation of the FSIA in several ways, supports this construction. Combining these and other points, the essay concludes that the FSIA confers presumptive immunity in suits against state officials, including former state officials, for their official acts committed while in office, and that this immunity applies even in human rights cases. This conclusion, if accepted, would narrow the scope of human rights litigation in U.S. courts, but it would not affect other legitimate mechanisms of human rights accountability.
Jack L. Goldsmith, Secrecy and Safety, 239 New Republic 31 (2008) (reviewing Eric Lichtblau, Bush’s Law: The Remaking of American Justice (2008)).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Terrorism
,
National Security Law
Type: Article
Jack L. Goldsmith & Bobby Chesney, Terrorism and the Convergence of Criminal and Military Detention Models, 60 Stan. L. Rev. 1079 (2008).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Terrorism
,
Military, War, & Peace
,
National Security Law
Type: Article
Abstract
Six years after the 9/11 attacks, U.S. policy concerning the detention of alleged terrorists remains legally uncertain and politically contested. The Bush administration has used three different mechanisms--traditional civil trials, military commissions, and military detentions--to justify the detention of terrorists, and not always in an obviously principled or coherent fashion. Congress has legislated with respect to military commissions in the Military Commissions Act of 2006. But despite numerous reform proposals, Congress has declined to address the more consequential issue of military detention without trial in any detail or to address the proper relationship among the three detention mechanisms. The Supreme Court has continued its biannual consideration of detention issues by granting certiorari in Boumediene v. Bush, a case challenging the Military Commissions Act of 2006. But there is little prospect that Boumediene will lay the detention debate to rest...
Jack L. Goldsmith & Neal Katyal, The Terrorists’ Court, N.Y. Times, July 11, 2007, at A19.
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Terrorism
,
National Security Law
,
Courts
Type: News
Jack L. Goldsmith & Jeremy Rabkin, A Treaty the Senate Should Sink, Wash. Post, July 2, 2007.
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Congress & Legislation
,
Admiralty & Law of the Sea
,
Treaties & International Agreements
Type: News
Jack L. Goldsmith & Alan O. Sykes, Lex Loci Delectus and Global Economic Welfare: Spinozzi v. ITT Sheraton Corp., 120 Harv. L. Rev.1137 (2007).
Categories:
Civil Practice & Procedure
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Torts
,
Litigation & Settlement
,
Courts
,
International Law
Type: Article
Curtis A. Bradley, Jack L. Goldsmith & David H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 Harv. L. Rev. 870 (2007).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Courts
,
Executive Office
,
Foreign Relations
,
Foreign Law
,
Human Rights Law
,
Admiralty & Law of the Sea
Type: Article
Jack L. Goldsmith & Tim Wu, Who Controls the Internet? Illusions of a Borderless World (Oxford Univ. Press 2006).
Categories:
Technology & Law
Sub-Categories:
Communications Law
,
Cyberlaw
,
Networked Society
Type: Book
Abstract
This book tells the story of the Internet's challenge to governmental rule in the 1990s, and the ensuing battles with governments around the world. It's a book about the fate of one idea - that the Internet might liberate us forever from government, borders, and even our physical selves. We learn of Google's struggles with the French government and Yahoo's capitulation to the Chinese regime; of how the European Union sets privacy standards on the Net for the entire world; and of eBay's struggles with fraud and how it slowly learned to trust the FBI. In a decade of events the original vision is uprooted, as governments time and time again assert their power to direct the future of the Internet.
Jack L. Goldsmith & John F. Manning, The President's Completion Power, 115 Yale L.J. 2280 (2006).
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
Administrative Law & Agencies
Type: Article
Abstract
This Essay identifies and analyzes the President's completion power: the President's authority to prescribe incidental details needed to carry into execution a legislative scheme, even in the absence of congressional authorization to complete that scheme. The Essay shows that the completion power is a common explanation for very different presidential powers, including the administration of a presidential statute, prosecutorial discretion, and the use of force abroad without express congressional authorization. Maintaining that the widespread use of the completion power is a partial vindication of Chief Justice Vinson's neglected dissent in the Youngstown Steel Seizure case, this Essay argues that the completion power sheds light on a structural symmetry that cuts across Articles I, II, and III of the Constitution--namely, that each of the three branches has some degree of inherent power to carry into execution the powers conferred upon it. The Essay also examines normative questions about the scope and limits of the power.
Jack L. Goldsmith & Timothy Wu, Digital Borders, Legal Aff. Jan./Feb. 2006, at 40.
Categories:
Technology & Law
Sub-Categories:
Cyberlaw
,
Communications Law
,
Networked Society
Type: Article
Abstract
National boundaries have survived in the virtual world--and allowed national laws to exert control over the internet.
Jack L. Goldsmith, Justice Jackson's Unpublished Opinion in Ex parte Quirin, 9 Green Bag 223 (2006).
Categories:
Government & Politics
Sub-Categories:
Military, War, & Peace
,
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Article
Jack Goldsmith & Eric A. Posner, The New International Law Scholarship, 34 Ga. J. Int'l & Comp. L. 463 (2006).
Categories:
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
International Law
,
Legal Scholarship
Type: Article
Abstract
In this response, the authors address criticisms of their 2005 book, "The Limits of International Law," identifying points of agreement, clarifying some of their positions, and responding to major criticisms. They also outline what appears to be an emerging consensus about the appropriate path of international law scholarship.
Curtis A. Bradley & Jack L. Goldsmith, The War on Terrorism: International Law, Clear Statement Requirements, and Constitutional Design, 118 Harv. L. Rev. 2683 (2005).
Categories:
Criminal Law & Procedure
,
Government & Politics
,
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Terrorism
,
Executive Office
,
Congress & Legislation
,
Military, War, & Peace
,
Laws of Armed Conflict
Type: Article
Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047 (2005).
Categories:
Criminal Law & Procedure
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Terrorism
,
Congress & Legislation
,
Military, War, & Peace
,
National Security Law
,
Executive Office
,
Laws of Armed Conflict
Type: Article
On Nineteen Eighty-Four: Orwell and Our Future (Jack L. Goldsmith, Abbott Gleason & Martha C. Nussbaum, eds., Princeton Univ. Press 2005).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Humanities
,
Law & Political Theory
Type: Book
Abstract
George Orwell's Nineteen Eighty-Four is among the most widely read books in the world. For more than 50 years, it has been regarded as a morality tale for the possible future of modern society, a future involving nothing less than extinction of humanity itself. Does Nineteen Eighty-Four remain relevant in our new century? The editors of this book assembled a distinguished group of philosophers, literary specialists, political commentators, historians, and lawyers and asked them to take a wide-ranging and uninhibited look at that question. The editors deliberately avoided Orwell scholars in an effort to call forth a fresh and diverse range of responses to the major work of one of the most durable literary figures among twentieth-century English writers.
Jack L. Goldsmith, The Unexceptional U.S. Human Rights RUDs, 3 U. St. Thomas L.J. 311 (2005).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Law
,
Treaties & International Agreements
,
Human Rights Law
Type: Article
Ryan Goodman & Jack L. Goldsmith, U.S. Civil Litigation and International Terrorism, in Civil Litigation Against Terrorism (John Norton Moore ed., 2004).
Categories:
Civil Practice & Procedure
,
Criminal Law & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Terrorism
,
Litigation & Settlement
,
International Law
Type: Book
Abstract
Since September 11, the United States has mobilized enormous military, political, and legal resources to combat the threat of terrorism. This paper examines one component of these efforts: civil suits for acts of terrorism. We analyze current U.S. law governing civil actions against terrorists, consider the strengths and weaknesses of such actions, and propose alternative reforms. The paper proceeds in four parts. Part I describes the central pivot around which the doctrinal issues turn - the problem of state action. Part II analyzes U.S. law governing civil litigation against alleged terrorists who do not implicate the Foreign Sovereign Immunities Act ("FSIA"). Part III analyzes U.S. law governing civil litigation against alleged terrorists who do implicate the FSIA. Part IV discusses the policy tradeoffs of civil actions against terrorists, considers the strengths and weaknesses of current law in light of these policy issues, and analyze several legal reforms.
Jack L. Goldsmith, Liberal Democracy and Cosmopolitan Duty, 55 Stan. L. Rev. 1667 (2003).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Law & Political Theory
,
National Security Law
,
Foreign Relations
,
Treaties & International Agreements
Type: Article
Abstract
This essay critiques the "cosmopolitan duty" argument that is raised in criticizing the United States for its failure to take affirmative steps that would help other nations and their peoples. This argument maintains that the United States should ratify global treaties and intervene more vigorously to stop human rights abuses, even if doing so would lower net U.S. welfare. This essay argues that underappreciated theoretical, practical, and moral factors limit the duty of liberal democracies to engage in cosmopolitan action, and that there cannot be a coherent ideal of liberal democracies' cosmopolitan duties unless these realistic limits on what liberal democracies can do is understood. However, this essay does not criticize the cosmopolitan stance per se; rather, it suggests ways that cosmopolitan sentiments can be more fully realized by being more realistic.
Jack L. Goldsmith & Stephen Krasner, The Limits of Idealism, 132 Daedalus 47 (2003)
Categories:
International, Foreign & Comparative Law
,
Civil Practice & Procedure
Sub-Categories:
Jurisdiction
,
Treaties & International Agreements
,
International Law
,
Human Rights Law
Type: Article
Jack L. Goldsmith, The Self-Defeating International Criminal Court, 70 U. Chi. L. Rev. 89 (2003).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Criminal Prosecution
,
Courts
,
International Law
,
Human Rights Law
Type: Article
Jack L. Goldsmith & Eric A. Posner, Moral and Legal Rhetoric in International Relations: A Rational Choice Perspective, 31 J. Legal Stud. S115 (2002).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Foreign Relations
,
International Law
Type: Article
Abstract
Critics of realist and rational choice approaches to international law argue that if nations were motivated entirely by power or self-interest, their leaders would not make moral and legal arguments because no one would believe them. Thus, the prevalence of moral and legal rhetoric on the international stage refutes the behavioral assumptions of realism and rational choice. This paper argues that even if nations are not motivated by a desire to comply with morality or law, the use of moral and legal arguments could occur in equilibrium. Signaling and cheap talk models show that nations may engage in talk in order (1) to deflect suspicion that they have unstable political systems or adversarial interests, and (2) to coordinate when gains from coordination are available. International talk is often moral and legal because the obligational vocabulary of moral and legal dispute between individuals is also useful for purely amoral strategic interactions when cooperation and coordination are involved. The existence of moral and legal rhetoric in international relations is the result of strategic incentives, not of the desire to comply with morality or law.
Curtis A. Bradley & Jack L. Goldsmith, The Constitutional Validity of Military Commissions, 5 Green Bag (2002).
Categories:
Government & Politics
,
Criminal Law & Procedure
,
Constitutional Law
Sub-Categories:
Terrorism
,
Executive Office
,
Congress & Legislation
,
Military, War, & Peace
,
National Security Law
Type: Article
Abstract
This essay defends the constitutional validity of the Military Order issued by President Bush on November 13, 2001, which authorizes the establishment of military commissions to try certain non-citizens involved in terrorism. The essay begins by describing the ways in which military commissions have been used throughout U.S. history. It then explains why President Bush had statutory authority to issue the Military Order, and why he probably also had independent constitutional authority to do so as Commander in Chief. Although the Order was not preceded by a congressional declaration of war, the essay argues that such a declaration is not constitutionally required in order for the President to exercise his constitutional or statutory war powers, including his power to establish military commissions. Finally, the essay argues that the September 11 terrorist attacks, to which the Order was a response, violate the laws of war and therefore fall within the jurisdiction of military commissions.
Curtis A. Bradley & Jack L. Goldsmith, My Prerogative, 80 Foreign Aff. 188 (2001).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Foreign Relations
,
International Law
Type: Article
Jack L. Goldsmith & Alan O. Sykes, The Internet and the Dormant Commerce Clause, 110 Yale L.J. 785 (2001).
Categories:
Technology & Law
,
Civil Practice & Procedure
,
Constitutional Law
Sub-Categories:
Jurisdiction
,
Cyberlaw
,
Networked Society
,
Communications Law
Type: Article
Jack L. Goldsmith & Eric A. Posner, Further Thoughts on Customary International Law, 23 Mich. J. Int'l L. 191 (2001).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Law
,
Treaties & International Agreements
Type: Article
Abstract
In two earlier articles, the tools of game theory were used to sketch a positive theoretical account of customary international law ("CIL"). This theory rejected as question-begging the usual explanations of CIL based on legality, morality, opinio juris, and related concepts. It was argued instead that CIL emerges from nations' pursuit of self-interested policies on the international stage. This approach helps explain many overlooked features of CIL, including how CIL originates and changes, why the content of CIL tracks the interest of powerful nations, and why nations change their views of CIL when their interests change. Finally, the practices associated with four supposedly well-settled rules of CIL were examined, and it was concluded that this theory better explained these practices than competing theories.
Jack L. Goldsmith, The Internet and the Legitimacy of Remote Cross-Border Searches, 2001 U. Chi. Legal F. 103.
Categories:
Technology & Law
,
International, Foreign & Comparative Law
,
Civil Practice & Procedure
Sub-Categories:
Jurisdiction
,
International Law
,
Cyberlaw
Type: Article
Abstract
A remote cross-border search takes place when persons in one nation use computer networks to explore data on computers in another nation. It is increasingly clear, especially after the September attack, that remote-cross border searches by public officials will be an important tool in the fight against cybercrime and cyberterrorism. Many commentators argue that cross-border searches violate the territorial sovereignty of the country where the data is located. This essay argues that such searches are consistent with international law principles of enforcement jurisdiction. It does not argue that there will be no limits on such searches, but rather that such limits are not deducible from norms of territorialism. The limits on remote cross-border searches will emerge from a messy process of cross-border search and retaliation, as nations adjust themselves to the changed circumstances of the Internet. In addition to arguing in support of these conclusions, the essay tries to shed light on the relationship between technological change and the evolution of jurisdictional concepts.
Jack L. Goldsmith & Curtis Bradley, Treaties, Human Rights, and Conditional Consent, 149 Pa. L. Rev. 399 (2000).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Foreign Relations
,
International Law
,
Human Rights Law
Type: Article
Jack L. Goldsmith, The Internet, Conflicts of Regulation, and International Harmonization, in Governance in the Light of Differing Local Values (Law and Economics of International Telecommunications) (Christoph Engel & Kenneth H. Keller eds., Nomos 2000).
Categories:
Technology & Law
Sub-Categories:
Communications Law
,
Cyberlaw
,
Networked Society
Type: Book
Jack L. Goldsmith, Sovereignty, International Law, and International Relations Theory, 52 Stan. L. Rev. 959 (2000) (reviewing Stephen D. Krasner, Sovereignty: Organized Hypocrisy (1999)).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Foreign Relations
,
International Law
Type: Article
Jack L. Goldsmith, Statutory Foreign Affairs Preemption, 2000 Sup. Ct. Rev. 175.
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Federalism
,
Supreme Court of the United States
,
Foreign Relations
Type: Article
Abstract
This paper examines the problem of statutory foreign affairs preemption. There are two related interpretive issues. One concerns the proper interpretive default presumption. Should preemption analysis indulge a presumption in favor of the federal government's strong national interest in conducting foreign affairs? Should it instead be biased to protect traditional state prerogatives? Or should no presumption attach in either direction? I argue that neither an interpretive canon favoring federal foreign affairs interests, nor one favoring state interests, is warranted in this context. Considered separately, each canon rests on implausible institutional and empirical assumptions. When a foreign relations statute touches on traditional state prerogatives, both canons are implicated, and both lose coherence. The prudent course is for courts to apply "ordinary" principles of preemption without any presumption in favor of state or federal law, even when they think the statute concerns foreign affairs. Of course, courts have an array of "ordinary" preemption doctrines at their disposal even after they have resolved the default presumption issue. The second issue, therefore, is: Which preemption doctrine(s) should they apply in the foreign relations context? When a case involves a state law that appears to implicate foreign relations, options for preemption include express preemption, conflict preemption, obstacle preemption, field preemption, dormant commerce clause preemption, dormant foreign affairs preemption, and the federal common law of foreign relations. These doctrines can be compared along two dimensions: (a) the degree to which the political branches have spoken to the preemption issue, and (b) the extent to which preemption doctrines require courts to engage in an independent assessment of the state law's effect on U.S. foreign relations. I argue that, for reasons of institutional competence and political process, and because of the waning of the domestic-foreign affairs distinction, courts should engage in minimalist statutory foreign affairs preemption. They should eschew independent judicial foreign policy analysis, and preempt state law only on the basis of policy choices traceable to the political branches in enacted law. This, I argue in the last Section of the paper, is precisely what the Supreme Court did in its recent decision in Crosby v. National Foreign Trade Council, 120 S Ct 2298 (2000).
Jack L. Goldsmith, Should International Human Rights Law Trump U.S. Domestic Law?, 1 Chi. J. Int'l L. 327 (2000).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
,
International Law
,
Treaties & International Agreements
Type: Article
Abstract
The essay defends the U.S. from criticisms from the human rights community for its failure to make international human rights treaties a source of law in the domestic realm. The author explains the legal validity of the U.S. practice of not integrating the International Covenant of Civil and Political Rights (ICCPR) into the domestic realm under both international law and domestic constitutional law. A background of the ICCPR is also presented as well as its advantages and disadvantages for the U.S.
Jack L. Goldsmith & Eric A. Posner, Understanding the Resemblance between Modern and Traditional Customary International Law, 40 Va. J. Int'l L. 639 (2000).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Law
Type: Article
Jack L. Goldsmith, Unilateral Regulation of the Internet: A Modest Defense, 11 Eur. J. Int'l L. 135 (2000).
Categories:
Technology & Law
,
Civil Practice & Procedure
Sub-Categories:
Conflict of Laws
,
Cyberlaw
,
Communications Law
,
Networked Society
Type: Article
Abstract
This article analyses the conflicts-of-law problems that supposedly arise from the fact that every nation can unilaterally regulate every Internet transaction. It argues that the threat of multiple national regulation of Internet transactions is significantly exaggerated. It then examines a more serious problem: the spillover effects from unilateral national regulation. These spillovers do not affect the legitimacy of unilateral regulation, but they might argue for public and private harmonization strategies to eliminate the spillovers. Unfortunately, the prospects for such harmonization are generally dim in many contexts. This means that unilateral national regulation will continue to be a primary vehicle of Internet regulation - a prospect that is not nearly as destructive of the Internet's future as conventional wisdom suggests.
Jack L. Goldsmith & Eric A. Posner, A Theory of Customary International Law, 66 U. Chi. L. Rev. 1113 (1999).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Law
Type: Article
Abstract
This article presents a theory of customary international law ("CIL") that seeks to sort out the many well-known difficulties with standard accounts of CIL. The theory uses simple game theoretical concepts to explain how what we call CIL arises, why nations "comply" with CIL as commonly understood, and how CIL changes. This theory differs from the standard account of CIL in several fundamental respects. It rejects the usual explanations of CIL based on opinio juris, legality, morality, and related concepts. States do not comply with norms of CIL because of a sense of moral or legal obligation; rather, their compliance and the norms themselves emerge from the states' pursuit of self interested policies on the international stage. In addition, the behaviors associated with CIL do not reflect a single, unitary logic. Instead, they reflect various and importantly different logical structures played out in discrete, historically contingent contexts. Finally, the theory is skeptical of the existence of multilateral behavioral regularities that are typically thought to constitute CIL. The article tests the theory using case studies from four traditional areas of CIL: neutrality, diplomatic immunity, prize, and maritime jurisdiction. We find that most purported rules of CIL reflect pure coincidence of interest, rather than international cooperation, and that the rest are best explained as the outcome of repeated bilateral prisoner's dilemmas or coercion analogous to the behavior of the monopolist in predatory pricing games. We conclude by examining the implications of our analysis for understanding the role of CIL in domestic constitutional arrangements, the function of international treaties and international organizations, and the status of modern international human rights law.
Jack L. Goldsmith & Curtis Bradley, Pinochet and International Human Rights Litigation, 97 Mich. L. Rev. 639 (1999).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Sovereign Immunity
,
International Law
,
Human Rights Law
Type: Article
Abstract
The British House of Lords recently considered whether Augusto Pinochet was entitled to immunity from arrest and possible extradition to Spain for human rights abuses allegedly committed during his reign as Chile?s head of state. In its second decision in the case (after the first one was vacated due to a conflict of interest), the House of Lords concluded that Pinochet was not entitled to immunity for acts of torture and related conduct committed after Britain?s 1988 ratification of an international convention against torture. In addressing this immunity issue, the parties and judges in the Pinochet case looked closely at the large and growing body of U.S. case law involving civil suits against foreign officials for alleged human rights abuses committed in foreign countries. In this article, we in effect do the opposite: we assess how the Pinochet decision might be relevant to international human rights litigation in U.S. courts. The article focuses on three issues in particular. It first considers whether developments in international human rights law limit the scope of the domestic immunity available to foreign governments and officials. The House of Lords held that these developments did limit the scope of Pinochet?s immunity from criminal process in Great Britain. In the United States, however, the political branches and the federal courts have, with narrow and specific exceptions, declined to permit developments in international human rights law to limit the scope of foreign sovereign immunity from civil process. As we explain, the adverse political consequences that might flow from otherwise-unfettered private lawsuits against foreign officials for human rights abuses justify the broader immunities available in U.S. domestic courts. The second issue is the legitimacy of a U.S. counterpart to the British rule, invoked by some of the Law Lords in Pinochet, that customary international law ("CIL") is part of the British common law. In the United States, plaintiffs and scholars have argued for a similar rule of incorporation to justify the domestic application of substantive international human rights law. As we explain, however, the constitutional implications of an automatically-incorporated CIL are substantially different for the United States than they are for Great Britain. And, when faced with claims of international immunity, such as the claim of head-of-state immunity that was at issue in Pinochet, U.S. courts do not apply the CIL governing this immunity directly. Instead, they seek and follow political branch authorization. The failure by courts to apply CIL as automatically-incorporated common law in this context, involving traditional rules of CIL that are a central component of international relations, casts substantial doubt on the conventional wisdom that international human rights law should be applied as self-executing federal common law. Finally, the article defends the United States? general resistance to the domestic application of international human rights law. This resistance has two dimensions. First, the United States does not apply international human rights law to domestic officials. This approach is justified by the profound uncertainty regarding the source and content of international law, and the general adequacy of U.S. domestic human rights protections. Second, the United States permits the domestic application of international human rights law against foreign governmental officials, but only in very narrow contexts. This limited embrace of international human rights law reflects a legitimate concern with giving private citizens, and unelected judges, too much influence over U.S. foreign relations. As we explain, both of these justifications for resistance to the domestic application of international human rights law ? the vagueness of international norms and the danger that private lawsuits will interfere with foreign relations ? find support in the House of Lords? decision in Pinochet.
Jack L. Goldsmith, The New Formalism in United States Foreign Relations Law, 66 U. Colo. L. Rev. 1395 (1999).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Foreign Relations
Type: Article
Abstract
This article analyzes familiar foreign relations law doctrines through the lens of rules and standards. The main, but not exclusive, focus is on the political question doctrine, the act of state doctrine, and dormant foreign affairs preemption. Prior to the 1960s, courts applied these doctrines in a highly formalistic fashion. Beginning in the 1960s, courts embraced a more instrumental and functional approach to these doctrines. I call this approach the foreign relations effects test. Under the foreign relations effects test, federal courts in their discretion identify and assess the foreign relations interests of the United States and make predictions about the effect of certain acts (by a federal court or a state) on these relations. They typically do this in the absence of guidance from the political branches. On the basis of such an independent foreign policy analysis, courts accommodate these interests through abstention, special interpretive canons, federal common law, or preemption as they best saw fit. The article has two main aims. The first is to identify and analyze the foreign relations effects test. The test rests on questionable assumptions about the nature of foreign relations law and the proper role of federal courts. It purports to protect political branch prerogatives in foreign relations, but it has the ironic consequence of enhancing the federal courts' power to make foreign relations law at the expense of the political branches. The second aim of the article is to identify and analyze a "new formalism" that has, in recent years, replaced the foreign relations effects test. The new formalism is not a return to conceptualism. Nor is it an attempt to mask value judgments by reference to legal materials. The new formalism is a pragmatic approach to judicial foreign relations doctrines based on analysis of comparative institutional competence and likely political branch response to various judicial decision-making strategies. The new formalism rejects the case-by-case judge-made foreign relations effects test. It aims to protect political branch prerogatives in non-constitutional foreign relations cases through the use of rules rather than standards. The best of these rules encourage the federal political branches with superior competence and a superior democratic pedigree to clarify the content of U.S. foreign relations law.
Jack L. Goldsmith & Curtis Bradley, The Abiding Relevance of Federalism to U.S. Foreign Relations, 92 Am. J. Int'l L. 675 (1998).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Federalism
,
Foreign Relations
,
International Law
Type: Article
Abstract
The international law community has heavily criticized the United States’ handling of the Breard case. These criticisms are understandable. Perhaps because of the rush of time, the explanations by the Department of Justice and the Supreme Court for failing to stop Breard’s execution brushed over important issues of domestic and international law. In addition, Virginia’s decision to proceed with the execution, and the federal Government’s decision not to block it, may have reflected insufficient respect for international law and institutions. These decisions may also adversely affect U.S. relations with other nations and weaken consular protection of U.S. citizens abroad. These criticisms, however, tell only part of the story. In particular, they do not consider countervailing considerations grounded in the Constitution’s allocation of authority between the federal and state governments.
Jack L. Goldsmith, Against Cyberanarchy, 65 U. Chi. L. Rev. 1199 (1998).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Cyberlaw
,
Networked Society
,
Communications Law
Type: Article
Abstract
This article discusses the fundamental question of whether the state can regulate cyberspace that was raised when the Supreme Court partially invalidated the Communications Decency Act on First Amendment grounds in the 1997 case of Reno v. ACLU. Professor Goldsmith challenges three specific errors made by those who are skeptical as to whether the government can regulate cyberspace: (1) their overstatement of the differences between cyberspace transactions and other transnational transactions; (2) their failure to recognize the distinction between default laws and mandatory laws; and (3) their underestimation of the potential of traditional legal tools and technology to resolve the multijurisdictional regulatory problems implicated by cyberspace.
Jack L. Goldsmith & Curtis Bradley, Federal Courts and the Incorporation of International Law, 111 Harv. L. Rev. 2260 (1998).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Courts
,
Judges & Jurisprudence
,
Federalism
,
International Law
Type: Article
Abstract
Many scholars believe that customary international law (CIL) has the status of self-executing federal common law, to be applied by courts in the United States without any need for it to be enacted or implemented by Congress. In an article last year, we argued that this view lacks historical support and is in substantial tension with political branch enactments as well as broader constitutional principles of separation of powers, federalism, and representative democracy. We concluded that CIL should not be treated as federal law in the absence of authorization from the federal political branches. In the May 1998 issue of the Harvard Law Review, Professor Harold Koh argues that our analysis and conclusion are "radical," "utterly mistaken," and "bizarre." In this response to Koh's article, we focus on the four central errors in Koh's analysis: (a) its mistaken use of history; (b) its conflation of the traditional CIL that regulates international relations with the new CIL of human rights that regulates the way a nation treats its citizens; (c) its unjustifiably broad conception of the common law powers of federal courts; and (d) its unwarranted assumption that all of international law must be incorporated into domestic law.
Jack L. Goldsmith & Steven Walt, Erie and the Irrelevance of Legal Positivism, 84 Va. L. Rev. 673 (1998).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Legal Theory & Philosophy
,
Courts
,
Judges & Jurisprudence
Type: Article
Abstract
Conventional wisdom holds that there is a connection between (a) the jurisprudential commitment to legal positivism expressed in Erie R.R. v. Tompkins, and (b) Erie's holding that the common law powers of federal courts exercised in Swift v. Tyson are unconstitutional. In this essay we analyze and challenge this conventional wisdom. The conventional wisdom is sometimes expressed as an historical connection between beliefs about positivism and Erie's overruling of Swift. We think this historical claim lacks affirmative support, overlooks significant evidence to the contrary, and misleadingly views Erie's pre-history through the distorting lens of Holmes' dissents. Other times the conventional wisdom is expressed as a conceptual or normative connection between the truth of positivism and Erie's holding. We think these contentions too are wrong. Our claim here is one of irrelevance: Erie's commitment to legal positivism is conceptually and normatively independent of its constitutional holding. Legal positivism is a general theory about the nature of law. Even if true, it has no implications for the allocation of authority between the state and federal governments. This argument shows that Erie is not a decision about the nature of law, but rather reflects a particular time-bound set of constitutional and policy priorities. It helps to explain why some recent philosophical attacks on Erie are groundless. It demonstrates that the many outstanding mysteries about the practical implications of Erie's holding cannot, as many think, be resolved by recourse to legal positivism. And it presents a cautionary lesson about the dangers that inhere in attempting to derive constitutional conclusions from theories about law.
Jack L. Goldsmith, International Human Rights Law and the United States Double Standard, 1 Green Bag 2d 365 (1998).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Law
,
Human Rights Law
,
Foreign Relations
,
Treaties & International Agreements
Type: Article
Jack L. Goldsmith, Regulation of the Internet: Three Persistent Fallacies, 73 Chi.-Kent L. Rev. 1119 (1998).
Categories:
Technology & Law
Sub-Categories:
Cyberlaw
,
Communications Law
,
Networked Society
Type: Article
Abstract
This article responds to three papers in a symposium on Internet regulation. The articles all argue that the Internet is a novel phenomenon that promises to transform legal regulation. My main claim is that each article illustrates a fallacy that pervades the Internet regulation literature. An article by David Post and David Johnson offers a normative argument for governmental non-regulation of the Net. But their argument, like many arguments about jurisdiction over Internet transactions, erroneously assumes that cyberspace is a place hermetically separated from the "real" world. Dan Burk's article, which analyzes the Internet's effect on national copyright regulation, rests on a common but incomplete understanding of how nations regulate transnational transactions. Henry Perritt argues that the Internet will strengthen international law. This argument exemplifies the Internet literature's unjustified optimism about the promise of cheap, plentiful information. I contend that all three articles err because of an obsessive focus on what is new about the Internet, at the expense of what is old about it.
Jack L. Goldsmith, The Internet and the Abiding Relevance of Territorial Sovereignty, 5 Ind. J. Global Legal Stud. 475 (1998).
Categories:
Technology & Law
,
Civil Practice & Procedure
Sub-Categories:
Jurisdiction
,
Cyberlaw
,
Communications Law
,
Networked Society
Type: Article
Jack L. Goldsmith, What Internet Gambling Legislation Teaches about Internet Regulation, 32 Int'l Law. 1115 (1998).
Categories:
Technology & Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Gaming & Sports Law
,
Networked Society
Type: Article
Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 Va. L. Rev. 1617 (1997).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Federalism
,
Courts
,
Foreign Relations
Type: Article
Jack L. Goldsmith, Review: International Litigation and the Quest for Reasonableness: Essays in Private International Law by Andreas F. Lowenfeld (1996), 91 Am. J. Int'l L. 391 (1997).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Law
Type: Article
Curtis Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Separation of Powers
,
Courts
,
Federalism
,
International Law
Type: Article
Abstract
In the last twenty years, a consensus has developed among courts and scholars that customary international law has the status of federal common law. We label this consensus the "modern position." Courts have endorsed the modern position primarily to support their conclusion that international human rights lawsuits between aliens "arise under" the laws of the United States for purposes of Article III of the Constitution. Scholars have pushed the consequences of the modern position further by arguing that customary international law preempts inconsistent state law under the Supremacy Clause, binds the President under the Take Care Clause, and even supersedes prior inconsistent federal legislation. In this Article, we question the modern position's historical validity, and show that its recent rise to orthodoxy has been accompanied by little critical scrutiny. We then question contemporary arguments for the modern position and show how these arguments depart form basic understandings about American representative democracy, federal common law, separation of powers, and federalism. We conclude that, in the absence of authorization by the federal political branches, customary international law should not have the status of federal law. This conclusion requires less change in judicial practice than might commonly be thought. Nonetheless, the story of the modern position's rise and continued influence presents cautionary lessons for a democratic society increasingly governed by international law.
International Dispute Resolution: The Regulation of Forum Selection (Jack L. Goldsmith ed., Martinus Nijhoff 1997).
Categories:
International, Foreign & Comparative Law
,
Civil Practice & Procedure
Sub-Categories:
Conflict of Laws
,
Dispute Resolution
,
International Arbitration
Type: Book
Abstract
For situations where the forum selection clause can make all the difference, this book is invaluable. The text shows how parties can mitigate the effects of concurrent jurisdiction ex ante through the use of forum selection clauses in arbitration agreements, and also explains the role of provisional and protective measures in the regulation of forum selection and judicial doctrines that directly regulate "improper" forum selections.
Jack L. Goldsmith & Curtis Bradley, The Current Illegitimacy of International Human Rights Litigation, 66 Fordham L. Rev. 319 (1997).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
,
International Law
Type: Article
Jack L. Goldsmith, Interest Analysis Applied to Corporations: The Unprincipled Use of a Choice of Law Method, 98 Yale L. Rev. 597 (1989).
Categories:
Civil Practice & Procedure
,
Corporate Law & Securities
Sub-Categories:
Corporate Law
,
Business Organizations
,
Choice of Law
Type: Article

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