il08.out

1. What exactly is the claim that the U.S. is asserting against the Belmont heirs?

2. How did the U.S. acquire this claim?

3. What defenses did the defendants assert?

a. a defense of choice of law? what is the relevance of the lower court’s ruling that New York law, and specifically New York public policy, would preclude giving effect to the U.S. claim?

b. a defense of treaty law?

i. was the agreement whereby the U.S. acquired the claim valid?

ii. if so, did it prevail over New York law?

UNITED STATES V. CURTISS-WRIGHT, p. 208 (U.S. 1936).

1. Is this a treaty-law case? If not, why is it given at this point in the casebook?

2. How did this case begin, and who is bringing it to the Supreme Court?

3. Did the President have the power to issue the Proclamation in dispute here? Where did he get it?

a. from his inherent constitutional powers?

b. from an Act of Congress?

c. is the Act of Congress valid?

4. Suppose the Joint Resolution had provided that any person violating the embargo, once it is issued by the President, would be subject to such punishment, not to exceed $10,000 in fines or 1 year in prison, as the President shall determine in said Proclamation. Would that have been valid?

DAMES & MOORE V. REGAN, p. 215 (U.S. 1981). Validity of two dimensions of President Carter’s last-minute agreement with Iran to resolve the Hostages crisis.

1) Note the 3-part categorization of presidential power set forth by Jackson in Youngstown

a) strongest: when President acts with Congressional authorization

b) lesser: when President acts in the absence of Congressional action

c) least: when President acts contrary to Congressional action

2) Hostages Agreement with Iran, implemented by presidential order

a) created Claims Tribunal to decide US claims against Iran and vice versa, requiring all lawsuits to cease and Iranian assets to be diverted to a fund for the Tribunal

b) revoked licenses to sue Iran and obtain pre-judgment attachment of Iranian assets

c) suspended claims against Iran that could be submitted to the Tribunal

d) Dames & Moore loses right to proceed now in US courts and attach Iranian assets

3) did the President have power to enter into this particular agreement?

a) is it a “treaty” in the constitutional sense?

b) does it fall within the President’s powers?

i) dispose of Iranian assets: express Congressional authorization?

ii) settlement of claims, absent a specific authorization?

Breard, n. 5 p. 223-4 (US 1998), and supplemental note in handout : is the right of an alien accused of crime to communicate with consular agents of his home country under the Vienna Convention on Consular Relations, as well as the host country’s duty to inform the alien of that right upon arrest, “self-executing”? Is it subject to waiver by failure to raise it in the original criminal proceeding? If a court can’t require compliance with non-self-executing treaty obligations, what would it take to enforce them?

Medellin, n. 6 p. 225, and supplemental handout: is UN Charter Art. 94 (CB p. 902), obliging a State against which a judgment is rendered by the ICJ to comply with that judgment, “self-executing”? If not, how is the judgment to be enforced within the US domestic system?