International Law Outline



Download 320.5 Kb.
Page35/128
Date20.01.2021
Size320.5 Kb.
1   ...   31   32   33   34   35   36   37   38   ...   128
Medellin v. Texas – SCOTUS – 2008 (Packet I – 33-45)

  1. Is Avena enforceable as domestic law in state court? AND Does Presidential Memo require states to review and reconsider claims w/o regard for state procedural rules?

  2. ROBERTS -

    1. NEITHER is federal law that PREEMPTS state limitations on habeas petitions.

    2. Self-executing v. non-self-executing

      1. Say that neither Optional Protocol, UN Charter, or ICJ statute are self-executing, and no implementing legislation exists – SO, not automatically binding domestic law.

        1. OP – bare grant of jurisdiction

        2. UN Charter, article 94 – comply with judgments – commitment for POLITICAL branches to comply. NOT a directive to domestic courts

          1. Entirely discretionary

          2. Why would one ever take a state to ICJ? Ridiculous interpretation.

    3. Judgment recognizing commercial/property dispute different than enforcing INJUCTIVE relief

    4. President’s Memo

      1. Authorized by Optional Protocol and UN Charter? NO. responsibility for making non-self executing treaty into domestic law is on CONGRESS.

        1. Thus, falls into third Youngstown category

        2. Note – P can’t make it self-executing, but COURT can make non-self executing.

      2. Exercise of foreign affairs authority (like SE agreement?) – distinguishes Dames & Moore as being backed up by historical practice.

        1. Here, no historical precedent

  3. STEVENS Concurrence

    1. Cost of Texas complying is MINIMAL

    2. Cost of refusing to respect ICJ are significant.

    3. Leave up to TX – because Court’s judgment doesn’t foreclose future appropriate action by THEM

  4. BREYER Dissent

    1. History of cases – self-executing treaty provisions are not uncommon or peculiar.

      1. Very few treaties DO speak clearly on matter, so majority’s saying that the instruments don’t is ridiculous.

      2. Cases suggest practical, context-specific criteria the court has used before.

    2. Would find treaty provisions self-executing

      1. Language supports direct judicial enforceability in both OP and UN Charter

      2. OP speaking to Vienna Convention individual right

      3. Judgment re: meaning of self-executing treaty provision is going to be binding/final

      4. This approach has negative practical implications for all the other treaties with ICJ dispute resolutions

      5. This particular judgment is well suited to direct judicial enforcement

      6. Finding these obligations self-executing doesn’t interfere with other branches, doesn’t involve judicial overreaching, doesn’t involve creation of new cause of action

      7. President and Congress unconcerned with this direct judicial enforcement – in fact, President


  • Directory: sites -> default -> files -> upload documents
    upload documents -> Always put things in threes (eskridge has ocd) I. Procedural Due Process and Reading a Case
    upload documents -> Federalism – The Structure of Government
    upload documents -> General Info About Property law
    upload documents -> Con law professor Larry Sager Fall 1995 I. U. S. Term limits V. Thornton
    upload documents -> Property with Professor Vicki Been
    upload documents -> Property Outline – Professor Upham, Spring 2000
    upload documents -> Constitutional law outline part I: structure of government judicial review and constitutional interpretation
    upload documents -> Complex federal investigations
    upload documents -> Foundations: Agency Law Introduction to law of enterprise organizations
    upload documents -> Pricing v. Sanctions


    Share with your friends:
  • 1   ...   31   32   33   34   35   36   37   38   ...   128




    The database is protected by copyright ©essaydocs.org 2020
    send message

        Main page