BORK Concurring –
Dismisses idea that federal common law provides cause of action for violations of int’l law
Federal common law – rule that is non-statutory and non-constitutional
Doesn’t necessarily include international law. More, historical stuff like common law of contract and tort, which itself affords right of action.
Not recognizing that “customary int’l law” might be common law. Why limit to “traditional common law”?
Inadvisable to expand – judiciary should stay out of international law – state and political question doctrine.
Congress – does not take this distinction up – passes TVPA (1991)
Remember, Congress could get rid of ATS at any moment, because NOT constitutional – it’s statutory.