Virginia Journal of International Law
Foreign affairs legalism, the dominant approach in academic scholarship on foreign relations law, holds that courts should abandon their traditional deference to the executive in foreign relations, and that courts and Congress should take a more activist role in foreign relations than they have in the past. Foreign affairs legalists believe that greater judicial involvement in foreign relations would curb executive abuses and promote adherence to international law. This Article argues that foreign affairs legalism rests on implausible assumptions about the incentives and capacities of courts. In U.S. history, the executive has given more support to international law than the judiciary or Congress has, which suggests that foreign affairs legalism would retard, rather than spur, the advance of international law.
Daniel Abebe & Eric Posner, "The Flaws of Foreign Affairs Legalism," 51 Virginia Journal of International Law 507 (2011).