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17 Duke J. Comp. & Int'l L. 415 (2006-2007)
Deference, Human Rights and the Federal Courts: The Role of the Executive in Alien Tort Statute Litigation

handle is hein.journals/djcil17 and id is 419 raw text is: DEFERENCE, HUMAN RIGHTS AND THE FEDERAL COURTS: THE ROLE OF THE EXECUTIVE IN ALIEN TORT STATUTE LITIGATION MARGARITA S. CLARENS* INTRODUCTION In the early days of our nation's history, Chief Justice John Marshall articulated two principles that form the core of a growing debate regarding international human rights litigation. The first was argued before the House of Representatives in 1800. The President, Marshall said, is the sole organ of the nation in its external relations, and its sole representative with foreign nations.' The second principle came three years later in the Chief Justice's infamous Marbury v. Madison opinion. He wrote, It is emphatically the province and duty of the judicial department to say what the law is.''2 In a simpler world these ideas regarding the separation of powers would be mutually exclusive: international diplomacy on the one hand and domestic jurisprudence on the other. However, in the real world, the two spheres of government collide, begging the question: what role is there for the courts in announcing and applying the law when that law affects the nation's external relations? Further, in the realm of international human rights litigation, where cases of torture scream out for justice, when is it appropriate for the courts to defer to Executive authority? How much deference should the courts give when the President, through the Department of State and the Department of Justice, announces that foreign policy concerns trump those of the private litigants? Though it is error to suppose that every case or controversy which touches foreign relations lies beyond Copyright © 2007 by Margarita S. Clarens. * Margarita S. Clarens is a J.D. candidate at Duke University School of Law and the Editor-in-Chief of the Duke Journal of Comparative and International Law. She would like to thank Professor Curtis Bradley for his guidance and assistance with this Note. 1. United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936) (citing 10 ANNALS OF CONG. 613 (1800)). 2. Marbury v. Madison, 5 U.S. 137, 177 (1803).

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