scholarly journals The Four Doctrines of Self-Executing Treaties

1995 ◽  
Vol 89 (4) ◽  
pp. 695-723 ◽  
Author(s):  
Carlos Manuel Vázquez
Keyword(s):  
United States ◽  
Supreme Court ◽  
Federal Court ◽  
The United States ◽  
Federal Courts ◽  
The Self ◽  
Scholarly Writing ◽  
The Supreme Court ◽  
Different Types ◽  
Tremendous Amount

A distinction has become entrenched in United States law between treaties that are “self-executing” and those that are not. The precise nature of this distinction—indeed, its very existence—is a matter of some controversy’ and much confusion. More than one lower federal court has pronounced the distinction to be the “most confounding” in the United States law of treaties. A tremendous amount of scholarship has sought to clarify this distinction, but the honest observer cannot but agree with John Jackson’s observation that “[t]he substantial volume of scholarly writing on this issue has not yet resolved the confusion” surrounding it. The continuing, and remarkably candid, judicial confusion over this issue will, I hope, excuse yet another attempt to bring some coherence to the doctrine. In this article, I argue that much of the doctrinal disarray and judicial confusion is attributable to the failure of courts and commentators to recognize that for some time four distinct “doctrines” of self-executing treaties have been masquerading as one. With a view to furthering the development of doctrine in conformity with constitutional allocations of power, I identify these four “doctrines,” as reflected in the self-execution decisions of the Supreme Court and the lower federal courts, and I examine the very different types of analysis that they call for.

scholarly journals When Courts Run Amuck: A Book Review of Unequal

2018 ◽  
Vol 5 (2) ◽  
pp. 391-404
Author(s):  
Theresa M. Beiner
Keyword(s):  
United States ◽  
Supreme Court ◽  
Employment Discrimination ◽  
The United States ◽  
Federal Courts ◽  
Legal Standards ◽  
Point Analysis ◽  
The Supreme Court ◽  
Law Professors

In Unequal: How America’s Courts Undermine Discrimination Law (“Unequal”), law professors Sandra F. Sperino and Suja A. Thomas provide a point-by-point analysis of how the federal courts’ interpretations of federal anti-discrimination laws have undermined their efficacy to provide relief to workers whose employers have allegedly engaged in discrimination. The cases’ results are consistently pro-employer, even while the Supreme Court of the United States—a court not known for being particularly pro-plaintiff—has occasionally ruled in favor of plaintiff employees. The authors suggest some reasons for this apparent anti-plaintiff bias among the federal courts, although they do not settle on a particular reason for the courts’ frequent dismissal of these claims. Instead, the book seeks to expose how these seemingly erroneous dismissals occur and suggest avenues for reforming these legal standards. This Review begins by describing the book’s main arguments. Throughout this description, the Review supports and at times challenges some of the authors’ positions. In particular, this Review examines arguments regarding the role politics play in the courts’ decisionmaking in employment discrimination cases. It also explores the ironic result that the courts’ approaches to these cases actually may lead to more discrimination in the workplace and therefore more cases. Finally, this Review describes the authors’ suggestions for reform and proposes that changes in this area of the law are best accomplished by the entities that created the problems—the courts.

scholarly journals Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd.

2019 ◽  
Vol 113 (1) ◽  
pp. 116-122
Author(s):  
Kristen E. Eichensehr
Keyword(s):  
Supreme Court ◽  
Federal Court ◽  
The United States ◽  
Federal Courts ◽  
Courts Of Appeals ◽  
Animal Science ◽  
Official Statement ◽  
The Supreme Court ◽  
Foreign Governments ◽  
Domestic Law

When a foreign country's law is relevant to a case in U.S. federal court and the foreign country files an official statement about the meaning of its law, how should U.S. courts treat the foreign government's representations? In Animal Science Products, Inc. v. Hebei Welcome Pharmaceuticals Co., the Supreme Court of the United States held that “[a] federal court should accord respectful consideration to a foreign government's submission, but is not bound to accord conclusive effect to the foreign government's statements.” In so doing, the Supreme Court settled a disagreement between the courts of appeals and reversed an opinion of the Second Circuit that had given conclusive effect to the Chinese government's representations about its domestic law. Animal Science Products provides important guidance to federal courts faced with increasingly frequent filings by foreign governments, but it leaves unresolved significant questions about deference to foreign sovereign amici and preserves existing debates about the nature of “respectful consideration.”

Repeal of the Judiciary Act of 1801

1915 ◽  
Vol 9 (3) ◽  
pp. 519-528 ◽  
Author(s):  
William S. Carpenter
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
Federal Courts ◽  
The Political ◽  
The Federalist ◽  
The Supreme Court ◽  
Political Advantage ◽  
The One ◽  
Circuit Courts

The intent of the framers of the judiciary act of 1801 has been to the present day a matter of some doubt. On the one hand it has been shown that alterations in the judiciary system of the United States had long been agitated before the failure of the Federalist party in the elections of 1800. Soon after the establishment of federal courts in 1789 relief had been sought by the justices of the supreme court from the arduous duties necessitated in riding the circuits. In 1799 a bill designed to establish a system of circuit courts was reported upon which action was postponed. But this later became the basis for the act of 1801. It has, therefore, been contended that, quite apart from the political advantage given the Federalists by the passage of the act of 1801, such changes in the judiciary system were warranted by necessity.At the same time it is equally clear that the amount of business before the courts of the United States, although it had been excessive, had begun to decline. No further prosecutions were to be expected under the alien and sedition acts, and a decrease in the number of suits before the federal courts involving other questions was observed even before the accession of Jefferson to the presidency.

The Right of Appeal in Naturalization Cases in the Federal Courts

1927 ◽  
Vol 21 (1) ◽  
pp. 40-52 ◽  
Author(s):  
Henry B. Hazard
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
Federal Courts ◽  
Court Cases ◽  
The Past ◽  
The Supreme Court ◽  
The Law ◽  
The Right

The Supreme Court of the United States, by Mr. Justice Brandeis, recently handed down its decision in Tutun v. United States, and Neuberger v. United States. This is the latest of the important Supreme Court cases determining the law of naturalization, of citizenship, and of expatriation. During the past fifteen years they have comprised Johannessen v. United States, Mansour v. United States, Luria v. United States, Maibaum v. United States, Mackenzie v. Hare, United States v. Ginsberg, United States v. Ness, United States v. Morena, Ozawa v. United States, Yamashita v. Hinkle, United States v. Thind, Kaplan v. Tod, and Toyota v. United States.

scholarly journals Sosa v Alvarez-Machain and The Alien Tort Claims Act

2006 ◽  
Vol 37 (1) ◽  
pp. 1
Author(s):  
Hugh King
Keyword(s):  
United States ◽  
Supreme Court ◽  
International Law ◽  
Supreme Court Decision ◽  
The United States ◽  
Federal Courts ◽  
The Supreme Court ◽  
Lower Courts ◽  
First Time ◽  
Tort Claims

Since the seminal case of Filartiga v Pena-Irala in 1980, the controversial Alien Tort Claims Act has regularly been invoked in United States federal courts to sue foreign perpetrators of international human rights violations. In Sosa v Alvarez-Machain, decided in 2004, the United States Supreme Court for the first time ruled on the Act’s proper application. This article, after first identifying three different approaches taken towards the Act by federal courts over the last 25 years, examines the Supreme Court decision. While welcoming the Court’s affirmation of the Act as a mechanism for addressing certain international law violations, it critiques the Court’s conservative and problematic test to determine the extent of the international law violations falling within the Act’s ambit, and highlights many ambiguities in the decision with which lower courts will have to grapple.

Introduction

2021 ◽  
pp. 1-16
Author(s):  
James E. Pfander
Keyword(s):  
United States ◽  
Twentieth Century ◽  
Federal Court ◽  
The United States ◽  
Federal Courts ◽  
Court System ◽  
Federal Law ◽  
The Supreme Court ◽  
History Of ◽  
Article Iii Courts

This book’s introduction poses the problem of uncontested adjudication in the federal court system of the United States by focusing on the 2013 decision in United States v. Windsor. While in that case, the Supreme Court reached the merits despite the absence of a continuing dispute between the parties, Justice Antonin Scalia objected that doing so violated the adverse-party requirement, which he viewed as a constitutional requirement imposed by the case-or-controversy language of Article III. In arguing that federal courts may not entertain uncontested claims of right, Scalia’s dissent in Windsor nicely poses the question at the heart of this book. But the book reaches a different conclusion, based on the text and history of the Constitution, and the early practice of Article III courts. Having set the stage, the introduction offers an overview of the book’s argument. Part I describes the early practice of the antebellum federal courts, Part II the rise of the case-or-controversy rule in the early twentieth century, and Part III the continuing relevance of uncontested forms of adjudication. Synthesizing these strands, the book concludes that Article III courts can entertain proceedings to hear and determine uncontested applications to assert or register a claim of right under federal law.

Second-Order Challenges and the Rise of Mid-Decade Redistricting

2016 ◽  
Author(s):  
Nicholas R. Seabrook
Keyword(s):  
United States ◽  
Supreme Court ◽  
Case Studies ◽  
Latin American ◽  
The United States ◽  
Federal Courts ◽  
Equal Protection ◽  
Conceptual Approach ◽  
Majority Opinion ◽  
The Supreme Court

This chapter examines the rise of mid-decade redistricting by focusing on the decision of the Supreme Court of the United States in the 2006 case of League of United Latin American Citizens v. Perry. Both Davis v. Bandemer and Vieth v. Jubelirer approached the question of partisan gerrymandering of congressional boundaries through the framework of the so-called first-order equal protection review, assessing the direct effects of a challenged redistricting plan on voters' ability to elect representatives of their choice. The 2004 case of Cox v. Larios demonstrates an alternative conceptual approach to the issue of political gerrymandering, one that has proven considerably more successful at striking down partisan gerrymanders than the strategy of claiming equal protection relief under the Bandemer precedent. This chapter discusses Justice Anthony Kennedy's majority opinion in LULAC vs. Perry and argues that the federal courts have failed to overturn a gerrymander because their effects are generally not that long-lasting. This conclusion is bolstered through case studies of the states of Pennsylvania and Texas.

Capacity, Attitudes, and Case Attributes: The Differential Success of the States before the United States Courts of Appeals

2005 ◽  
Vol 5 (2) ◽  
pp. 147-167 ◽  
Author(s):  
Rorie Spill Solberg ◽  
Leonard Ray
Keyword(s):  
United States ◽  
Federal Court ◽  
The United States ◽  
Federal Courts ◽  
Courts Of Appeals ◽  
The Past ◽  
Policy Goals ◽  
Adoption And Implementation ◽  
The Supreme Court ◽  
Over Time

In the past few decades, the states have gained more discretion over policy adoption and implementation. Some of this expanded discretion has resulted from federal court rulings, as the states have increasingly used these courts to achieve their policy goals. But some states are more successful in the federal courts than others. Why is this? We examine cases argued by states in the United States Courts of Appeals between 1970 and 1996 to answer this question. Contrary to research at the Supreme Court level, we find no overall trend that the states are becoming more efficacious in court over time. We also find that the differences among the states' success in court cannot be attributed simply, or even primarily, to disparities in resources. Rather, case attributes and judicial attitudes provide the best explanations for state success in the Courts of Appeals.

scholarly journals THE CONCEPT AND THE CONTENT OF THE INTERROGATION OF THE SUSPECT IN CUSTODY IN CRIMINAL PROCEDURE IN THE UNITED STATES

2019 ◽  
Vol 1 (40) ◽  
Author(s):  
Miodrag N. Simović ◽  
Vladimir M. Simović
Keyword(s):  
United States ◽  
Supreme Court ◽  
Criminal Procedure ◽  
The United States ◽  
Federal Courts ◽  
The State ◽  
Constitutional Rights ◽  
The Supreme Court ◽  
The Right ◽  
The U.S

The paper analyses some relevant issues related to the treatment oflaw enforcement officers in the United States after a person has been taken intocustody or otherwise deprived of liberty, which requires informing that personof his/her constitutional rights. In the landmark decision Miranda v. Arizona(1966), the Supreme Court of the United States set standards for law enforcementofficers to follow when interrogating suspects held in custody.Suspects who are subject to custodial interrogation must be warned of theirright to remain silent; that any statements they make may be used as evidenceagainst them; that they have a right to an attorney; and if they cannot afford anattorney, the State will assign them one prior to any questioning, if they so wish.According to Miranda, unless those rights are not read, any evidence obtainedduring the interrogation may not be used against the defendant.Ever since Miranda was decided, state and federal courts have struggled witha number of issues with regard to its application, including the suspect’s beingin custody, which entitles the suspect to being readMiranda rights, the suspect’swaiving the right to have an attorney present during questioning. Some decisionsby the U.S. Supreme Court have attempted to answer these difficult questions.

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