Withholding Judgment

Why U.S. Courts Shouldn’t Make 
Foreign Policy

The interior of the United States Supreme Court, March 2011. Phil Roeder / Flickr

As the United States grew from a small set of colonies into a global hegemon, so did the geographic reach of its laws. From civil law to criminal law to human rights law, U.S. statutes now govern activity in every corner of the globe. Indeed, as recent news attests, soccer officials in Europe, cybercriminals in China, and multinational corporations operating in Africa are well within the United States’ legal cross hairs. As a result, the judges charged with interpreting U.S. laws have become crucial players in the exercise of American power.

Some legal scholars and human rights activists have applauded this development, urging U.S. courts to police distant lands. In their view, U.S. judges are well situated—perhaps uniquely situated—to decide matters of international justice, international commerce, and even international relations. They want judges in San Francisco to weigh in on securities transactions in Scotland; judges in Tampa to issue opinions about torture allegations in Tanzania. To this group, laws transcend land.

But applying domestic laws in foreign lands is a tricky business. Indeed, as the world has become more interdependent and multipolar, the limits of the United States’ legal reach—as well as the limited competence of its courts to resolve geopolitical questions—have become more apparent. The tension is especially notable when it comes to the Alien Tort Statute (ATS), which was enacted by the First Congress in 1789 and promptly forgotten for nearly 200 years. In 1980, the court on which I sit, the U.S. Court of Appeals for the Second Circuit, revived the ATS, allowing federal courts to decide cases brought by foreigners—although not by U.S. citizens—against foreign defendants for violations of “the law of nations” committed on foreign soil. The decision was widely celebrated by human rights lawyers who now hoped to seek justice for the victims of heinous crimes and dissuade would-be perpetrators from committing future ones. Its true impact, unfortunately, was far less momentous. It is doubtful that

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