Courts and scholars continue to debate the status of customary international law in U.S. courts. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach, however, adequately takes account of the Constitution’s allocation of powers to the federal political branches or the judiciary’s treatment of the law of nations throughout U.S. history. The Constitution’s allocation of specific powers to the federal political branches—such as the powers to recognize foreign nations, declare war, issue letters of marque and reprisal, and make rules governing captures—can only be understood by reference to certain background principles of the law of nations. Many of the Supreme Court’s decisions applying traditional principles derived from the law of nations may plausibly be understood as upholding the Constitution’s allocation of war and foreign relations powers to the political branches of the federal government. In numerous cases, the Court has upheld the rights of foreign sovereigns in ways that respect the political branches’ possession or exercise of these specific constitutional powers. This understanding has potential implications for the ongoing debate over the status of customary international law in U.S. courts. Specifically, it suggests that the modern position is over-inclusive and the revisionist position is under-inclusive of the role of customary international law. The allocation of powers approach—grounded in specific constitutional provisions and supported by numerous Supreme Court cases—suggests that courts should apply the law of nations when necessary to uphold the Constitution’s exclusive allocation of war and foreign relations powers to the federal political branches.
Issue 4
Disorder Certifying a Class: Misinterpretations of Rule 23(c)(1)(B) and a Proposed Alternative
Rule 23(c)(1)(B) was added to the Federal Rules of Civil Procedure in 2003 as one of several amendments to govern the mechanics of class-action litigation. Although the Rule generated almost no concern among practitioners or scholars at the time of its enactment, it has since become an unexpected fount of litigation. The Rule does not address the all-important question of whether to certify a particular class; it simply specifies the contents of the order that district courts must compose after deciding that certification is proper. In short, certification orders must “define the class claims, issues, or defenses.” The leading opinion construing the Rule holds that it requires courts to provide detailed lists of the claims, issues, and defenses that will be resolved in the class action. That opinion is wrong. The text, history, and purposes of Rule 23(c)(1)(B) reveal the Rule’s limited scope: In ordinary cases, a certification order that simply references counts from the plaintiffs’ complaint or certifies “all of plaintiffs’ claims” would easily satisfy the Rule. Because many courts misread the Rule as requiring extensive detail, litigants have incentives to pursue wasteful motion battles over the mere formatting of class-certification orders. By debunking misinterpretations of the Rule, this Note attempts to end such battles.
Rethinking Proportionality Under the Cruel and Unusual Punishments Clause
Although a century has passed since the Supreme Court started reviewing criminal punishments for excessiveness under the Cruel and Unusual Punishments Clause, this area of doctrine remains highly problematic. The Court has never answered doubts about the legitimacy of proportionality review, leading a controlling plurality of the Court to insist that such review be limited to a narrow class of cases. The Court has also adopted an ever-shifting definition of excessiveness, making the very concept of proportionality incoherent. Finally, the Court’s method of measuring proportionality is unreliable and self-contradictory. As a result, very few offenders have benefitted from the Court’s decision to engage in proportionality review. This area of doctrine needs rethinking.
This article is the first to establish that the Cruel and Unusual Punishments Clause was originally meant to prohibit excessive punishments as well as barbaric ones, and that proportionality review is therefore unquestionably legitimate. This article also demonstrates that proportionality is a retributive concept, not a utilitarian one. Punishments are unconstitutionally excessive if they are harsher than the defendant deserves as a retributive matter. Finally, this article shows that proportionality should be measured primarily in relation to prior punishment practice. The proposed approach will align the Court’s proportionality jurisprudence more closely with the core purpose of the Cruel and Unusual Punishments Clause, and will enable the Court to expand proportionality review to a much larger class of cases.