The Federal Common Law of Foreign Relations
Huotari, Joel M. L.
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This comment asserts that mere foreign policy implications should not be enough to establish federal jurisdiction over the litigation of an otherwise exclusively state law claim, as some circuits have allowed. The Second, Fifth and Eleventh Circuits have allowed such state law claims to be removed to the federal courts. The Ninth Circuit, however, rejects the proposal that the federal courts are somehow better equipped to hear cases which implicate foreign policy concerns. Questions of foreign policy are generally not the subject matter of the judicial branch, but of the legislative and executive branches. Members of Congress and of the State Department should be fielding the complaints of affected foreign nations, not the federal judiciary. Neither vigorous objection from a foreign sovereign, nor the threatened economic impact on that foreign country's gross domestic product should determine the jurisdiction of a case. Judicial presumptions of what the United States' interests might be in the realm of foreign relations should not be the dispositive factor for establishing federal jurisdiction. Out of deference to the separate branches of government and their respective roles, the federal judiciary should narrowly restrict the use of the federal common law of foreign relations as a jurisdiction-granting tool.