Zachary Clopton (University of Chicago Law School) has posted two related articles on SSRN. The first is State Law Litigation of International Norms: Horizontal and Vertical Dimensions (108 American Society of International Law Proceedings __ (2014 forthcoming)); here is the abstract:
For decades, scholars of international litigation focused their attention on the federal courts. The combination of diversity, alienage, federal question and Alien Tort Statute (ATS) jurisdiction largely justified this focus, opening multiple avenues for litigants to prosecute claims in federal courts. In recent years, however, the federal courts have closed some doors to international litigation. In response, international litigators have turned their gaze to state courts. This panel is but one example of this new direction. For an excellent earlier treatment of this topic, the U.C. Irvine Law Review published a symposium issue in 2013 dedicated to human rights litigation in state courts and under state law. [Ed.: Here is the introduction to that symposium.]
Within this new domain of U.S. states and international law, the focus justifiably has been on causes of action derived from common-law sources (whether in state or federal courts): (i) state law; (ii) foreign law, through state choice of law rules, and (iii) international law, also through state choice of law. What unites these categories is that courts are responsible for the relevant lawmaking choices. But state political branches also can engage with international norms. Examining the current and potential roles for state political branches permits an examination of doctrinal and theoretical questions in state litigation. First, I will offer some examples (real and hypothetical) of state political branch involvement. Then I will discuss two sets of inquiries in these cases: vertical debates about federal versus state actors, and horizontal debates about courts versus political branches. Third, I will discuss federal court doctrines that could limit state-level litigation, but I will do so in light of these horizontal and vertical dimensions. Finally, I will comment briefly on how state political branch involvement could play out with respect to the litigation of international norms.
The second is Executive Foreign Policy and the States: Recent Developments (111 Michigan Law Review First Impressions 28 (2012)) on SSRN. Here is the abstract:
On February 23 of this year, the Ninth Circuit Court of Appeals invalidated a California statute permitting victims of the Armenian genocide to file insurance claims, finding that the state's use of the label "Genocide" intruded on the federal government's conduct of foreign affairs. This decision, Movsesian v. Versicherung AG, addresses foreign affairs federalism — the division of authority between the states and the federal government. Just one month later, the Supreme Court weighed in on another foreign affairs issue: the separation of foreign relations powers within the federal government. In Zivotofsky v. Clinton, the Supreme Court ordered the lower courts to help referee a conflict between the executive and legislative branches of the federal government concerning how Jerusalem — born American citizens list their country of birth on their passports. The former case presented an issue of federalism and the latter an issue of separation of powers; yet both cases sought to delineate foreign affairs authority in the United States.
This Essay addresses the relationship between the states and the federal executive in foreign affairs — a federalism question — in light of coming separation-of-powers decisions. Part I briefly outlines foreign affairs federalism: how far into foreign affairs may states reach without stepping into the federal government's exclusive terrain? Part II looks at a particular permutation of this federalism debate, examining the conflict between the states and the national executive. Movsesian, the Armenian genocide case, highlights this state-executive clash. The panel and en banc opinions in Movsesian offered two different approaches to this federalism question, both of which present textual and practical difficulties. Having laid out the problems with these approaches, Part III looks for answers in an unlikely place: decisions about the separation of powers within the federal government. In Zivotofsky, the Supreme Court called for increased judicial participation in contests between Congress and the President in foreign affairs. This command will produce a body of law defining the sphere of exclusive executive authority vis-à-vis Congress. Synthesizing these decisions, Part IV argues that, for structural and pragmatic reasons, courts should bar states as well as Congress from this exclusive executive sphere. The Supreme Court has called upon the courts to articulate the boundaries of executive and legislative authority within the federal government, but in so doing, the courts indirectly will provide guidance about the division between the federal government and the states.
My take on these issues from an originalist perspective is somewhat different, see here, here and here.