A Realist Defense of the Alien Tort Statute

This Article offers a new justification for modern litigation under the Alien Tort Statute (ATS), a provision from the 1789 Judiciary Act that permits victims of human rights violations anywhere in the world to sue tortfeasors in U.S. courts. The ATS, moribund for nearly 200 years, has recently emerged as an important but controversial tool for the enforcement of human rights norms. “Realist” critics contend that ATS litigation exasperates U.S. allies and rivals, weakens efforts to combat terrorism, and threatens U.S. sovereignty by importing into our jurisprudence undemocratic international law norms. Defenders of the statute, largely because they do not share the critics‟ realist assumptions about international relations, have so far declined to engage with the cost-benefit critique of ATS litigation and instead justify the ATS as a key component in a global human rights regime. This Article addresses the realists‟ critique on its own terms, offering the first defense of ATS litigation that is itself rooted in realism—the view that nations are unitary, rational actors pursuing their security in an anarchic world and obeying international law only when it suits their interests. In particular, this Article identifies three flaws in the current realist ATS critique. First, critics rely on speculation about catastrophic future costs without giving sufficient weight to the actual history of ATS litigation and to the prudential and substantive limits courts have already imposed on it. Second, critics‟ fears about the sovereignty costs that will arise when federal courts incorporate international-law norms into domestic law are overblown because U.S. law already reflects the limited set of universal norms, such as torture and genocide, that are actionable under the ATS. Finally, this realist critique fails to overcome the incoherence created by contending that the exercise of jurisdiction by the courts may harm U.S. interests while also assuming that nations are unitary, rational actors. Moving beyond the current realist ATS critique, this Article offers a new, positive realist argument for ATS litigation. This Article suggests that, in practice, the U.S. government as a whole pursues its security and economic interests in ATS litigation by signaling cooperativeness through respect for human rights while also ensuring that the law is developed on U.S. terms. This realist understanding, offered here for the first time, both explains the persistence of ATS litigation and bridges the gap that has frustrated efforts to weigh the ATS‟s true costs and benefits

American Hegemony and the Foreign Affairs Constitution

This Article uses insights from international relations theory to challenge the received wisdom that U.S. courts are incompetent to decide .foreign affairs issues. Since September 11, 2001, in particular, proponents of broad executive power have argued that the Judiciary lacks the Executive\u27s expertise, speed, flexibility, uniformity, and political savvy necessary in foreign affairs. For these reasons, legal doctrine has long called for especially strong foreign affairs deference to the Executive. This Article argues that special deference is grounded in an outmoded version of the popular theory of international relations known as realism. Realism views the world as anarchic, nations as opaque to the outside world, and geopolitics as though a few great powers manage the international system through realpolitik and the balance of power. When incorporated into constitutional.foreign affairs law, these realist tenets lead to a model that prioritizes executive branch competences over_judicial ones, but offers little guidance on how to weigh _foreign affairs effectiveness against other constitutional values such as liberty and accountability. The Author proposes a new, hegemonic model of desired institutional competences in foreign affairs law that takes account of the transformed post-Cold War world. America dominates the globe militarily, has a political system accessible to outsiders, provides public goods for the world, and plays a major role in defining enforceable international law. This American-led order will persist.for some time despite threats posed by terrorism and the rise of powers such as China and Russia. Under the hegemonic model, courts serve America \u27s .foreign affairs interests by maintaining stable interpretation of the law and bestowing legitimacy on acts of the political branches. Special deference is now unwarranted. This Article concludes by explaining why Boumediene v. Bush and other recent enemy combatant cases are consistent with the hegemonic model

Warfare as Regulation

The United States government’s national security activities, including the use of force, consume more than half of all federal discretionary spending and are carried out by the world’s largest bureaucracy. Yet existing scholarship treats these activities as conduct to be regulated, rather than as forms of regulatory action. This Article introduces a new paradigm for depicting what agencies involved in national security do. It posits that, like other agencies, the national security bureaucracy is best understood to be engaging in regulatory activity—by targeting, detaining, interrogating, and prosecuting enemies; patrolling the border; and conducting surveillance and covert actions. Also, like other agencies, this bureaucracy may overregulate—by using force or conducting surveillance more aggressively than necessary to achieve its objectives. This warfare-as-regulation paradigm offers several advantages over the predominant paradigm. It provides a cohesive explanatory framework for recent trends, including the individuation of targeting decisions, the infusion of legality into war-making, and widespread concern that national security decision-making favors aggressive policies and lacks sufficient transparency, accountability, and deliberation. Viewing warfare as regulation also helps reformers better identify the pathologies in the regulatory process and their true causes. Using basic insights from public choice theory, and using the practice of targeted killing as a case study, this Article maps the power dynamics and bureaucratic incentives that drive national security regulating. It concludes that these dynamics and incentives systematically encourage overregulation. This Article then explores administrative law principles, institutional reforms, and new opportunities for political influence that may create countervailing anti-regulatory pressures

The Intertwined Fates of Affirmative Action in the Military

This Article explores the deep connections between the crises facing the military and affirmative action. The military struggles with a sexual assault epidemic and a related failure to achieve gender and racial equality, both of which undermine its ability to effectively carry out its mission. Affirmative action faces growing skepticism from the American public and from the courts, which have been gradually eliminating the ground on which gender- and race-conscious measures can be constitutionally justified. In this time of crisis for both, the military and affirmative action need each other like never before. Affirmative action needs the military to tell the American public and the courts, once again, the story of how race- and gender-conscious measures permitted it to endure earlier crises and emerge as a stronger, highly respected institution. And the military needs affirmative action because it cannot hope to eliminate the damaging gender hostility within its ranks unless it uses gender-conscious measures to rapidly integrate its leadership—especially by assigning women to the combat positions from which they were unfairly excluded. If the military can once more lead by example, it may persuade a conservative Court to accept that there is still a place for affirmative action in American life. But the military must be willing to act and to use all of the available constitutional arguments in defense of its own policies, as well as those in civilian institutions. If affirmative action cannot survive in the military, it probably cannot survive anywhere in public life. Its fate and that of the military are inextricably intertwined

Delegating National Security

Conservative scholars and a Supreme Court majority support reviving the nondelegation doctrine as a way to downsize the administrative state. But proposals from these scholars and Justices inevitably maintain there should be an exception for national security. This Article explains why a national security exception defeats the nondelegation doctrine’s goals of preserving the separation of powers and individual liberty. In doing so, this Article charts the ways the national security state regulates and accounts for its immunity from the harshest attacks on the administrative state. This Article also predicts how this dynamic would affect a nondelegation revival. This Article begins by offering a new model depicting agency lawmaking in national security. It draws on insights from military-industrial complex theory, which has received scant attention from legal scholars. What I call the military-administrative complex uses threat-inflation to obtain increased regulatory authority over individuals, including American civilians. As its reach expands, the boundary between domestic and national security regulation fades. Next, this Article describes why presidential control theory—which grounds the legitimacy of delegation in the President’s political accountability and oversight—cannot justify a national security exception. The military-administrative complex is so entrenched and insulated that even the President must delegate vast discretion to agencies within it. Finally, this Article scrutinizes the sources the Justices themselves cite to support their nondelegation arguments. If the Court adopted the reasoning in these sources, this Article predicts, a revived nondelegation doctrine with a national security exception would be inherently unstable. Ever-expanding definitions of “national security” could allow the exception to swallow the rule

The Balance of Forces and the Empire of Liberty: States\u27 Rights and the Louisiana Purchase

This Article challenges the conventional wisdom about the Louisiana Treaty and argues that it was unconstitutional. As many students of history know, President Jefferson had serious misgivings about its constitutionality, which scholars have dismissed as driven by an overly strict construction of the Constitution. The Article concludes that Jefferson\u27s concerns were in fact motivated primarily by respect for federalism principles. This Article identifies and discusses the underlying conflict between two radically different visions of federalism. While Jefferson s Republicans believed that the incorporation of new states in the West would merely expand the Constitutions form of government to more territory, creating an empire of liberty, \u27\u27 the Federalists argued that it would destroy the delicate regional balance of power preserved by the Constitution. The author concludes that, given the federalism principles at stake, Jefferson ought to have give:n more weight to the \u27\u27balance of forces view and carried out his plan for presenting a constitutional amendment. This Article also contends that the consequences of Jefferson \u27s failure are more serious than scholars have admitted. States\u27 rights claims based on the empire of liberty theory implicit in the Louisiana Treaty made the spread of slavery inevitable. The failure to require an amendment triggered a decline in the use of the Article Five amendment process and set the stage for a further weakening of states\u27 rights. Finally, with potential threats to state sovereignty on the horizon, the Article concludes that a narrow view of the treaty power, consistent with the Supreme Court\u27s recent revival of federalism, would best preserve the constitutional principles weakened by the Louisiana Purchase