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70 U. Colo. L. Rev. 1395 (1999)
The New Formalism in United States Foreign Relations Law

handle is hein.journals/ucollr70 and id is 1417 raw text is: THE NEW FORMALISM IN UNITED
This article analyzes familiar foreign relations law doc-
trines through the lens of rules and standards. The main but
not exclusive focus is the political question doctrine, the act of
state doctrine, and dormant foreign affairs preemption. Prior
to the 1960s, courts applied these doctrines in a highly for-
malistic fashion.1 Beginning in the 1960s, courts embraced a
more instrumental and functional approach to these doctrines.
Since the end of the Cold War, courts have once again begun to
craft the doctrines in formalistic terms, although this new
formalism differs in justification, and sometimes in content,
from the pre-Cold War approach. This article identifies and
analyzes this new formalism in United States foreign relations
At first glance the political question doctrine, the act of
state doctrine, and dormant foreign affairs preemption appear
to have little in common. The political question and act of
state doctrines implicate horizontal relations between federal
courts and the federal political branches. These doctrines con-
template a modest role of abstention for federal courts. They
are often criticized as an abdication of the judiciary's constitu-
tional duty to say what the law is.2 By contrast, dormant
foreign affairs preemption implicates vertical relations be-
tween the federal government (most directly, federal courts)
and the states. This doctrine contemplates an active role for
federal courts in foreign relations cases. Federal courts not
only adjudicate the merits of these cases, they also preempt
state law and sometimes legislate rules of decision.
* Associate Professor of Law, University of Chicago. Thanks to Curt Brad-
ley, Beth Garrett, Jill Hasday, Paul Stephan, Cass Sunstein, Adrian Vermeule,
and G. Edward White for very helpful comments, Vidya Atre for research assis-
tance, and the Arnold and Frieda Shure Research Fund for financial support.
1. As I make clear below, for purposes of this article I equate formalism
with rule-based decision making. See Frederick Schauer, Formalism, 97 YALE
L.J. 509 (1988).
2. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

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