Washington Law Review


Laura Wishik


This Note examines the opinions in Tel-Oren that relied upon separation of powers principles to foreclose adjudication of section 1350 suits. The Note explores the underlying reasons for advocating judicial deference on foreign affairs issues. Judge Robb's application of the political question doctrine to Tel-Oren, and Judge Bork's use of both the political question and act of state doctrines as evidence of separation of powers principles that require judicial abstention, are analyzed in detail. Alternative principles that limit jurisdiction over such claims are examined, including the act of state doctrine, sovereign immunity, forum non conveniens, and the evidence required to establish the existence of a customary international law. The Note concludes that a broad deference doctrine is inappropriate. The Constitution does not require judicial abstention, and the political branches of government have assigned responsibility for section 1350 claims to the courts. Furthermore, a broad deference doctrine is unnecessary because other jurisdictional principles will prevent a flood of section 1350 claims in United States courts. Finally, refusing jurisdiction may have the very effect on foreign affairs that the proponents of the deference doctrine seek to avoid.

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