Should a Statement of Interest Matter?: Judging Executive Branch Foreign Policy Concerns

Authors

• Catherine H. Curlet, University of Georgia School of Law

Publication Date

2010

Abstract

Since the enactment of the Constitution, scholars have fiercely debated the question of the appropriate balance between the branches of the federal government in matters of foreign affairs. Recently, the Supreme Court set forth some guidelines for striking this balance between the Executive and the Judicial Branches in litigation implicating foreign affairs,yet the guidelines leave much of this debate unresolved. A cross-section of recent appellate court decisions illustrates how lower courts have filled in these gaps when assessing how much deference to give an Executive's Statement of Interest filed in cases concerning foreign affairs. This Note extracts from these cases a set of factors a court deems relevant when weighing an executive statement. Then, this Note applies the factors to litigation now pending before the Second Circuit of claims filed against businesses with ties to apartheid-era South Africa. Identifying and understanding the factors proposed by this Note will help provide litigants with a method of predicting the outcome of future cases implicating foreign affairs. At the same time, this Note recognizes that these factors represent only a few years of appellate court analysis following the Supreme Court's guidance on this issue, and concludes that litigants should remain vigilant of the potential for judicial evolution within the analytical framework presented.

Recommended Citation

Curlet, Catherine H. (2010) "Should a Statement of Interest Matter?: Judging Executive Branch Foreign Policy Concerns," Georgia Law Review: Vol. 44: No. 4, Article 7.
Available at: https://digitalcommons.law.uga.edu/glr/vol44/iss4/7