Ideology and the Application of International Law in U.S. Domestic Courts

• In Event: Refugees, Repatriations, and Aid Allocations

Abstract

When do national judges enforce international law? This question is increasingly important in world politics because national courts are crucial sites for the enforcement of international commitments, especially when international enforcement mechanisms are weak. Using a newly created dataset of cases in U.S. federal courts interpreting and applying the Alien Tort Statute (ATS), we show that national judges act both ideologically and strategically. Liberal judges are more likely to apply the ATS than conservative judges even though fear of backlash from the executive and the Supreme Court moderates the impact of liberal ideology. These findings speak to the importance of taking the psychology of judicial decision making seriously and situating ideological decision making at national courts within a national political strategic environment. Further, we show how the tension between ideological decision making and fear of backlash play out in subnational courts, which have been neglected in the literature. Our work suggests that there is some space for domestic, subnational courts to apply international law even when the ideological proclivities of judges and government are not aligned.

Authors

• A. Burcu Bayram, University of Arkansas

• Banks P. Miller, University of Texas at Dallas