Monday, October 25, 2010

Michaels on International Law and Statutory Interpretation in the U.S. Supreme Court of the 21st Century

Empagran’s Empire: International Law and Statutory Interpretation in the US Supreme Court of the 21st Century is a new essay by Ralf Michaels, Duke University - School of Law.  It is forthcoming in
THE U.S. SUPREME COURT AND INTERNATIONAL LAW; CONTINUITY OR CHANGE?, David L. Sloss, Michael D. Ramsey & William S. Dodge eds. (Cambridge University Press, Forthcoming).  Here's the abstract:
In its Empagran decision in 2004, the US Supreme Court decided that purchasers on foreign markets could not invoke US antitrust law even against a global cartel that affects also the United States. This article, forthcoming in a volume dedicated to the history on international law in the US Supreme Court, presents three radically different readings of the opinion. The result is that Empagran is a decision that is transnationalist in rhetoric, isolationist in application, and hegemonial in its effect. A decision with a seemingly straightforward argument is found riddled in the conflict between these different logics. A decision with few references to international law displays deep links to some of the most pressing international law issues. A decision with a forward‑looking globalization rhetoric finds itself mired in history. A decision praising harmony displays somber parallels to decisions refusing interference with the evil of slave trade. This has implications for our understanding of international law today, and for its place in its own history.