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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 STATES FOREIGN RELATIONS LAW JACK L. GOLDSMITH* 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 law. 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).