Paul Stephan is the John C. Jeffries, Jr., Distinguished Professor of Law and David H. Ibbeken ’71 Research Professor of Law at the University of Virginia School of Law. He served as counselor on international law to the legal adviser of the U.S. State Department in 2006-07 and as special counsel to the general counsel of the U.S. Department of Defense in 2020-21.
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The United States and its allies can achieve the immediate goal of giving Ukraine the support it needs without exploding the longstanding and important distinction between seizure and confiscation of a foreign state’s property.
What the executive branch should not do is pretend that Russia’s money can be used to provide material support to Ukraine in the face of existing legal barriers.
The Supreme Court’s recent decision in Jesner v. Arab Bank, PLC further restricts federal private litigation to vindicate international human rights law, perhaps to a vanishing point. In retrospect, even Sosa v. Alvarez-Machain’s guarded endorsement of such lawsuits seems exceptional. Both Kiobel v.
Today at 10 am, the House Judiciary Committee’s Subcommittee on the Constitution and Civil Justice will hold a hearing on S. 2040, the “Justice Against Sponsors of Terrorism Act.” As readers of this blog are aware, this bill passed the Senate unanimously and now is before the House.
Last year the Supreme Court, seized with a big constitutional question about foreign relations, feinted: Bond v. United States turned on rules of statutory interpretation rather than the constitutional balance between federalism and the treaty power. Fans of constitutional controversy, which centers attention on the Court in its self-assigned role as ultimate constitutional arbiter, may regret this move, although I do not.