October 23, 2017

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Why the ERA Failed: Comfort Over Content in the Fight for Women’s Rights -

Thursday, May 5, 2016

The Extent to Which Parents Should Regulate Their Children’s Abortions -

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Human Rights in a Reclusive Context: North Korea -

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Separation without Justification: Parental Rights of Pregnant Juveniles in Correctional Facilities -

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U.S. Asylum after September 11: Failures of the PATRIOT and ID Acts -

Thursday, May 5, 2016

Genomicare: The Affordable Care Act of 2023 -

Thursday, May 5, 2016

“Social Worker with a Gun:” The Role of Policing in Harm Reduction Among Addicts -

Tuesday, April 26, 2016

Pulling Principles Out of Thick Air: The Incorporation of Customary International Law Under the Alien Tort Claims Act of 1789 After Sosa v. Alvarez-Machain -

Tuesday, April 26, 2016

Schuette v. BAMN: Moving Toward a Colorblind Constitution -

Tuesday, April 26, 2016

American Women in Combat: What Israel and Canada Can Teach the United States About Integration -

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Monday, April 25, 2016

The Intersection of Lawlessness and Justice: Police Misconduct -

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A Recommendation for Eliminating Lifetime Tenure for Federal Judges -

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VICTORY OF THE MINORITY: The Jehovah’s Witnesses’ Fight for Constitutional Rights -

Monday, June 30, 2014

VACATING CONVICTIONS: The Efficacy of One Form of Relief from the Consequences of Conviction -

Monday, June 30, 2014

Announcements

Article submissions are now open for the Journal! Deadline: December 19!

Pulling Principles Out of Thick Air: The Incorporation of Customary International Law Under the Alien Tort Claims Act of 1789 After Sosa v. Alvarez-Machain

Author: Habib Olapade, Stanford University. To be published in Volume IX Issue 1, Winter 2016!

This essay conducts a critical analysis of Justice Antonin Scalia’s dissent in Sosa v. Alvarez-Machain. In Sosa, David Souter, writing for six of the justices, held that federal courts could incorporate customary international law (CIL) into their interpretations of the Alien Tort Claims Act (ATCA), § 9(b) of the Judiciary Act of 1789, as long as the custom in question was specific and accepted by the international community. Scalia dissented and maintained that federal courts had surrendered the power to incorporate CIL into their decisions when Erie Railroad Co. v. Tompkins (1938), a case that purported to eliminate federal common law-making authority, was decided. However, in his opinion, Scalia conceded that a jurisdiction-vesting clause such as the ATCA could be a valid exception to the Erie decision if it was passed under the Court’s “general jurisdiction to decide all cases arising under the Constitution, laws, or treaties of the United States.” In four parts, this paper closely analyzes Justice Scalia’s claims about the ATCA’s legislative history, design, implementation, and the federal judiciary’s interpretation of the ATCA before and after the Court’s Erie decision in 1938. It not only concludes that Scalia’s opinion is inconsistent with a proper understanding of the ATCA’s history, text, structure, implementation, and interpretation, but also finds that the ATCA falls under his own conceded exception.

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