International Law & the First Amendment

How They Intersect

By Gianna Emanuele Fernandez 

Gianna Emanuele Fernandez, a 2020 graduate of Albany Law School, was the Editor-in-Chief of the Albany Government Law Review, a recipient of the Isabelle Redman Prize and Joseph N. Barnett ’29 Memorial Scholarship, a research assistant in property law and graduated magna cum laude. Prior to attending Albany Law, Gianna graduated summa cum laude from University at Albany, SUNY with a Bachelor’s Degree in Criminal Justice.

 

While in law school Gianna held internships with the United States Attorney’s Office, Northern District of New York and the Fulton County District Attorney’s Office. Before deciding to pursue a career in law, Gianna worked for the Dept. of Social Services for three years. She is currently working as an Associate pending Admission for DerOhannesian & DerOhannesian law firm in Albany, NY focused on the areas of criminal defense, civil litigation and election law.

The United States has been at the forefront of the discussion relating to the state’s role in interpreting and implementing international law.  Even more influential in the international law discussion has been the Supreme Court’s assessment on the intersection of United States domestic law and international foreign law.

Many scholars view the Supreme Court as a filter between international law and the American Constitution.  Not surprisingly, the Court’s consideration of international law in domestic affairs has been wrought with much criticism from both ends of the political spectrum.  The Court has historically been divided between justices who see foreign law as “another source in deciding tough cases” and justices who believe that citing foreign law is “an improper and dangerous way to interpret American law and the Constitution.

In an interview with The Washington Post, Supreme Court Justice Stephen Breyer estimated that 15 to 20 percent of the Court’s cases require knowledge about what happens abroad. At the same time he acknowledged that there is an ongoing “political argument that people say the court shouldn’t refer to or cite cases from foreign courts.” With that in mind, Justice Breyer felt it necessary to repeatedly emphasize that the Supreme Court is a domestic court, not an international court, and that there is no "Supreme Court for the world."

The intersection of international law and American constitutional free speech underscores the difficulty of drawing a clear line separating international and domestic law.

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To read the paper, open HERE. 

Foreign Law Interpretations in U.S. Domestic Courts

What Weight or Deference?

By Daniel J. Martucci

Dan Martucci received his J.D. from Albany Law School in 2020. He is a 2016 graduate of the State University of New York, College at Brockport, where he majored in Political Science. While studying at SUNY Brockport, Dan served as President of the school’s European Union Simulation team, where students traveled both nationally and internationally to compete.

While at Albany, Dan served as Albany Law Review’s Executive Editor for Coordinating and Operations. Dan was also the recipient of the Best Brief award for the Gabrielli Appellate Advocacy Moot Court Competition.

Prior to joining the Albany law firm of O’Connor First, Dan gained experience in a number of practice areas including business and corporate, cyber security and data privacy, as well as the judiciary when he participated in the field placement program at the New York State Supreme Court, Appellate Division, Third Department.

In an increasingly globalized economy, conflict between domestic and foreign law is inevitable.  To resolve such conflict, U.S. courts look to a variety of sources of law, including foreign governments and foreign courts interpretations of their own law.  Until recently, circuit courts were divided on the level of deference that should be given to these interpretations.  The Supreme Court addressed this, though only partially, with Animal Science Products v. Heibei Welcome Pharmaceutical Company.

To start, by way of analogy, if a U.S. state’s Attorney General gives an opinion on their state’s law, the federal courts are not required to give that consideration controlling weight in their decision.   However, if a state’s highest court has decided an issue, the federal courts are bound to defer to that decision. This particular scenario was not answered by the case and presents an interesting issue.  Instinctively, it seems that the analogy should follow; judges of a state’s (or foreign country’s) highest court are best equipped to determine what the law means.

Whether or not the framework above may be applied partially relies on the concept of international comity, which governs international law and judgments from foreign courts vis-à-vis their weight in U.S. courts. This paper will discuss the relevant unilateralist, universalist, and multilateralist theories, analyze antitrust concepts applicable to that discussion, and explore the way the Supreme Court should address foreign high court interpretations, foreign executive agency interpretations, and authority under international treaties.

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To read the paper, open HERE.

International Law: Foreign, or Domestic?

By Nathaniel Nichols

Nathaniel Nichols is a graduating student at Albany Law School. He received his B.A. in Psychology, with a minor in History, as well as a Master’s degree in Mental Health Counseling from the University at Albany. While an undergraduate, he focused on clinical and counseling psychology, and worked in the Addictive and Compulsive Behaviors Laboratory. While a graduate student, and for a short time after, he worked at the Stratton Veteran’s Affairs Hospital in Albany in the Behavioral Health Clinic.
At Albany Law School, Nate has been a Dean’s list student and is the recipient of the David S. Williams Endowed Scholarship. He has focused on Corporate Law and Civil Litigation and, for two years, has clerked at the Office of General Counsel for the New York State Public Employees Federation.
Nate prepared this paper for Prof. Bonventre’s International Law of War & Crime Seminar.

The term international law implies a legal system that binds state actors to a set of legal precedents. However, the reality of international law in America is that the three branches of government merely adopt, apply, or enact international law when the domestic law of the country calls for it based on some internal need of the country.

In essence, the idea of International Law doesn’t apply to the United States. By creating domestic laws that reflect consideration of selective international sources, the United States isolates its legal system. This paper will discuss this theory.

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To read the entire paper, open HERE.