Today’s discussion in the Community concerns the use of eyewitness identification evidence in criminal cases and whether the Due Process Clause prohibits the use of all such evidence obtained in suggestive circumstances, or instead only the use of evidence obtained through suggestive circumstances orchestrated by the police.

This is the question presented in Perry v. New Hampshire, set for oral argument on November 2.  The question poses some interesting dilemmas about the reach of the Due Process Clause and whether in this context it is concerned principally with the reliability of evidence, or with perhaps deterring wrongful police misconduct.  That question is especially salient in light of recent research evidence suggesting that eyewitness identification evidence is far from ironclad.

Information on how to participate in the Community is available here.  And some of our favorite comments from yesterday are after the jump.

Gene Magidenko

The ATS and TVPA raise complex jurisdictional issues for American courts, with the ATS particularly problematic in terms of interpretation. The primary question, as I see it, is to what extent should the courts incorporate international norms into federal “common law”? Treaties, passed under the authority of the Treaty Clause and incorporated into the law of the United States through the Supremacy Clause, are a relatively easy matter. However, this is not the case with the “law of nations” to which the ATS refers.

In 1789, when Congress passed the ATS as part of the Judiciary Act, customary international law was quite limited in scope. It primarily addressed piracy, diplomacy, and safe conduct. In the second half of the 20th century, international law ballooned into a complex system with many juridical uncertainties. The Supreme Court’s interpretation of the ATS in Sosa v. Alvarez-Machain still lends itself to considerable uncertainty and is far from definitive. Indeed, with a constantly-evolving body of international law, what exactly constitutes the “law of nations”?

There is another definitional problem. The Second Circuit noted in Kiobel that the scope of liability under the law of nations is defined by customary international law itself. This interpretation creates a peculiar situation where the nature of a cause of action and its scope is determined by law exclusively external to that of the United States. Does the ATS indeed breach the wall of separation between domestic law (including treaties through the Supremacy Clause) and purely customary international law? This is of course an interpretational matter, albeit one with no ready answer.

Because of this uncertainty, the courts find themselves in foreign policy-making territory in adjudicating many of the cases under the ATS (and TVPA), to the extent that their rulings can have international implications. As the Court recognized in Sosa, it cannot escape this situation, and therefore created a possible prudential safety valve to its “universality, obligatory nature, and specificity” test.

My intuition is that courts should generally not concern themselves with the foreign policy implications of their decisions, simply because foreign policy is outside the scope of their constitutional domain. The Court rightly – if not very satisfyingly in that specific case – recognized this principle in Goldwater v. Carter. And if a decision may run counter to executive or congressional foreign policy aims, the solution is a simple statutory amendment.

The Court may certainly consider executive interpretation as to the statutory construction of the relevant provisions. But this interpretation should not be definitive, especially as it can easily evolve with time and regular political changes in administrations. Ultimately, there is no easy way out (nor should there be) for the Court, aside from good old-fashioned statutory interpretation to the best of its ability.


Marco Simons

I agree that [Judge] Leval is right about the contours of international law under the Alien Tort Statute. But the argument under the Torture Victim Protection Act is also strong: the Court decided in Clinton v. New York that “individual” could include corporations, and in this case there is express legislative history that states that the term “individual” was chosen for the purpose of excluding foreign states as defendants.

Posted in Everything Else

Recommended Citation: Aaron Tang, Today in the Community: October 19, 2011, SCOTUSblog (Oct. 19, 2011, 8:38 AM),