51 Va. J. Int'l L. 507 (2010-2011)
The Flaws of Foreign Affairs Legalism

handle is hein.journals/vajint51 and id is 513 raw text is: The Flaws of Foreign Affairs Legalism
DANIEL ABEBE & ERIC A. POSNER*
Foreign affairs legalism, the dominant approach in academic
scholarship on foreign relations law, holds that courts should
abandon their traditional deference to the executive in foreign
relations, and that courts and Congress should take a more ac-
tivist role in foreign relations than they have in the past. Foreign
affairs legalists believe that greater judicial involvement in for-
eign relations would curb executive abuses and promote adher-
ence to international law. This Article argues that foreign affairs
legalism rests on implausible assumptions about the incentives
and capacities of courts. In U.S. history, the executive has given
more support to international law than the judiciary or Congress
has, which suggests that foreign affairs legalism would retard,
rather than spur, the advance of international law.
Introduction..............          ..................  ..... 508
I.    Foreign Affairs Legalism    ....................    ..... 509
A.    Executive Primacy.   .................    ......... 509
B.    Three Versions of Foreign Affairs Legalism................... 512
1.    Executive and Judicial Competition over
International Law.....       ................ 512
2.    Balanced Institutional Participation .... ..... 514
3.    Transnational Government Networks................... 516
C.    Common Themes of Foreign Affairs Legalism............... 518
D.    Implications of Foreign Affairs Legalism for Foreign
Affairs Law.     .............................. 518
E.    The Source of Foreign Affairs Legalism ...... ...... 524
II.   The Flaws of Foreign Affairs Legalism  .................... 527
* Assistant Professor and Kirkland & Ellis Professor, University of Chicago Law School.
Thanks to Curt Bradley, Tom Ginsburg, Jack Goldsmith, and Aziz Huq for helpful comments.
We are also grateful to Kristin Janssen and James Kraehenbuehl for excellent research assistance.

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