Kenneth C. Randall and Chimène I. Keitner (University of Alabama - School of Law and University of California, Hastings College of the Law) have posted Sabbatino, Sosa, and Supernorms (Looking to the Future: Essays on International Law (Mahnoush H. Arsanjani, et al., ed. 2011)) on SSRN. Here is the abstract:
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The U.S. Supreme Court’s foundational decisions in Banco Nacional de Cuba v. Sabbatino and, forty years later, Sosa v. Alvarez-Machain demonstrate the Court’s application of a consistent, overarching principle of restraint: a U.S. court should adjudicate only claims involving what we call “supernorms.” In short, a supernorm is an international legal prohibition that has become so crystallized and entrenched as to be effectively unquestionable and inviolable either by sovereign entities or by individuals, particularly those acting under color of state authority.
