State Law Litigation of International Norms: Horizontal and Vertical Dimensions

Abstract

For decades, scholars of international litigation focused their attention on the federal courts. The combination of diversity, alienage, federal question and Alien Tort Statute (ATS) jurisdiction largely justified this focus, opening multiple avenues for litigants to prosecute claims in federal courts. In recent years, however, the federal courts have closed some doors to international litigation. In response, international litigators have turned their gaze to state courts. This panel is but one example of this new direction. For an excellent earlier treatment of this topic, the U.C. Irvine Law Review published a symposium issue in 2013 dedicated to human rights litigation in state courts and under state law.

Within this new domain of U.S. states and international law, the focus justifiably has been on causes of action derived from common-law sources (whether in state or federal courts): (i) state law; (ii) foreign law, through state choice of law rules, and (iii) international law, also through state choice of law. What unites these categories is that courts are responsible for the relevant lawmaking choices. But state political branches also can engage with international norms. Examining the current and potential roles for state political branches permits an examination of doctrinal and theoretical questions in state litigation. First, I will offer some examples (real and hypothetical) of state political branch involvement. Then I will discuss two sets of inquiries in these cases: vertical debates about federal versus state actors, and horizontal debates about courts versus political branches. Third, I will discuss federal court doctrines that could limit state-level litigation, but I will do so in light of these horizontal and vertical dimensions. Finally, I will comment briefly on how state political branch involvement could play out with respect to the litigation of international norms.

Keywords: international law, federalism, kiobel, alien tort statute, human rights, litigation, jurisdiction