Martha F. Davis & Johanna Kalb
In the past year, initiatives to block judicial consideration of foreign or international law have been introduced in over half of the states. The proposals vary, ranging from the “softer” versions, which codify existing common law principles governing judicial decision making to the more extreme versions, which aggressively bar all consideration of foreign and international law, virtually eliminating judicial discretion regarding the relevance of such law in a particular case. This Essay contends that in all their variations, these anti-transnational law measures pose serious and fundamental challenges to the American judicial system. They undermine our federalist system by ignoring federal constitutional text specifying that ratified treaties and international customary law are the “supreme Law of the Land,” to be enforced by federal and state courts alike. Moreover, the uncertainty they create could have dramatic impacts on the nation’s ability to conduct foreign policy, international trade, and national security. The result of these proposals, should they be enacted, would likely be frustration of international business transactions, elimination of judicial discretion in individual cases, and restriction on individual freedom to contract. Far from preserving American values, these proposals would serve to undermine them.
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