Empagran’s Empire: International Law and Statutory Interpretation in the US Supreme Court of the 21st Century

Authors

Ralf Michaels, Duke Law SchoolFollow

Document Type

Chapter of Book

Publication Date

2011

Keywords

Empagran, public international law, statutory interpretation, antitrust law and policy, book chapter

Abstract

In its Empagran decision in 2004, the US Supreme Court decided that purchasers on foreign markets could not invoke US antitrust law even against a global cartel that affects also the United States. The article, forthcoming in a volume dedicated to the history on international law in the US Supreme Court, presents three radically different readings of the opinion. The result is that Empagran is a decision that is transnationalist in rhetoric, isolationist in application, and hegemonial in its effect. A decision with a seemingly straightforward argument is found riddled in the conflict between these different logics. A decision with few references to international law displays deep links to some of the most pressing international law issues. A decision with a forward‑looking globalization rhetoric finds itself mired in history. A decision praising harmony displays somber parallels to decisions refusing interference with the evil of slave trade. This has implications for our understanding of international law today, and for its place in its own history. Paul Stephan has responded to the essay: http://ssrn.com/abstract=1559879

Citation

Ralf Michaels, Empagran’s Empire: International Law and Statutory Interpretation in the U.S. Supreme Court of the Twenty-First Century, in International Law in the U.S. Supreme Court 533-546 (David L. Sloss, Michael D. Ramsey & William S. Dodge eds., Cambridge University Press)