1 376 U. 8. 398 (1964) (hereinafter referred to as Sabbatinoand cited by page reference alone); 58 A.J.I.L. 778 (1964).

2 The lower court opinions are reported in 193 F. Supp. 375 (S.D.N.T., 1961), digested in 55 A.J.I.L. 741 (1961); and in 307 F. 2d 845 (2d Cir., 1962), 56 A.J.LL. 1085 (1962).

3 Falk, The Role of Domestic Courts in the International Legal Order (1964).

4 Even if it is agreed that the requirement of a stable international economy includes the protection of private capital abroad, it is doubtful whether either domestic courts or customary international law have much to contribute at this stage of international history. Given the attitude of the new states toward their imperial past and given the ideological outlook of the socialist states, it is futile to try to impose substantive standards that pre-dated their appearance on the international scene as independent actors. To protect contemporary foreign investment it is necessary to start over and to base protection on rules which receive the active assent of all major groups of nations in the world. If this assent cannot be achieved, then the implications of its absence must be accepted.

5 Pp. 416-420.

6 Underhill v.Hernandez, 168 U. 8. 250, 252 (1897); quoted by Justice Harlan at p. 416.

7 Pp. 416-417.

8 Pp. 418-419; Bernstein v.N.V. Nederlandsche-Amerikaansche Stoomvaart-Maatschappij, 173 F. 2d 71 (2d Cir., 1949), digested in 44 A.J.I.L. 182 (1950); 210 P. 2d 375 (2d Cir., 1954), digested in 48 A.J.I.L. 499 (1954).

9 It is “at maximum'’ because, according to the rationale of Sabbatino,it was unnecessary to apply the act of state doctrine to the Bernsteinfacts even without an Executive dispensation; a consensus condemned the racist basis of Nazi confiscations and the government whose acts were being appraised was no longer in existence. Therefore, Judge Learned Hand was not necessarily correct in deciding the first Bernsteincase as he did, that is, as if a domestic court had no choice but to validate German acts of state so long as judicial review had not been authorized by Executive mandate. See Bernstein v.Van Heyghen Freres Societe Anonyme, 163 P. 2d 246 (2d Cir.), digested in 42 A.J.I.L. 217 (1948); 332 U. 8. 772 (1947).

10 P. 420.

11 E.g.,see persuasive argument to this effect developed by Lillich, “A Pyrrhic Victory at Foley Square: The Second Circuit and Sabbatino,” 8 Villanova Law Rev. 155 (1963).

12 See Brief for the United States as Amicus Curiae, filed in the Supreme Court on Sept. 10, 1963, in the case of Banco Nacional de Cuba v.Sabbatino, 376 U. 8. 398 (1964) (reprinted in 2 International Legal Materials 1009 (1963)).

13 p. 420.

14 Refers to suggestion that act of state doctrine is only applicable to violations of international law if the Executive expressly requests the courts to refrain from passing on the question of validity. See Association of the Bar of the City of New York, Committee on International Law, A Reconsideration of the Act of State Doctrine in United States Courts (1959).

15 P. 436; see also note 9 above.

16 E.g.,Brief for the United States as Amicus Curiae, pp. 37-38: “ … a ‘Bernstein letter’ invoking the exception and waiving the act of state doctrine seems to have been issued only once, in the Bernsteincase itself, so in practice the exception is an exceedingly narrow one. The circumstances leading to the State Department's letter in the Bernsteincase were of course most unusual.“

17 United States v.Pink, 315 U. S. 203 (1942); 36 A.J.I.L. 309 (1942).

18 Rules of customary norms arise in an uncertain manner, there is no way to reform or repudiate their content, and there is a tendency not to regard their validity as dependent upon changes in the character of international society, however fundamental.

19 P. 428.

20 Ibid. Cf.also the sentence on pp. 436-437 articulating the holding in narrow terms: “However offensive to the public policy of this country and its constituent states an expropriation of this kind may be, we conclude that both the national interest and progress toward the goal of establishing the rule of law among nations are best served by maintaining intact the act of state doctrine in this realm of its application.“ (Emphasis supplied.)

21 Pp. 427-428.

22 P. 423; for an excellent interpretation of this aspect of the Sabbtinodecision see Henkin, “The Foreign Affairs Power of the Federal Courts: Sabbatino,” 64 Columbia Law Rev. 805 (1964).

23 P . 428.

24 Pp. 434-435.

25 This point has been developed in greater detail elsewhere. Falk, ‘ ? The Adequacy of Contemporary Theories of International Law—Gaps in Legal Thinking,” 50 Va. Law Rev. 231, 243-248 (1964).

26 Pp. 455-456.

27 See Hoffmann, “International Systems and International Law,” in The International System 205 (Knorr & Verba eds., 1961).

28 See very good discussion in Lissitzyn, “International Law in a Divided World,“ Int. Conciliation, No. 542 (1963), p. 1.

29 P. 428; such a conclusion takes account of most of the considerations mentioned by Justice White in his complaint that the majority is too rigid and deferential in its delimitation of the separation of powers. Pp. 461-472.

30 For a clear statement of the opposite position see Cardozo, ‘ ‘ Judicial Deference to State Department Suggestions: Recognition of Prerogatives or Abdication to Usurper”, 48 Cornell Law Q. 461 (1963).

31 And so, presumably, either Bernsteincourt might have taken this factor into account as part of a decision to refuse application of the act of state doctrine.

32 This would be especially so if the forum state and the new government were both strongly opposed to giving effect, if at all possible, to the acts of the predecessor government.

33 Banco National de Cuba v.Sabbatino, 307 F. 2d 845, 864 (1962); 56 A.J.I.L. 1085 (1962).

34 This argument is most persuasive if the holding is fashioned in the narrow form adopted by Judge Waterman in the Circuit Court of Appeals. cf.Justice White's emphasis on the fact that the Cuban decree “ i s alleged not only to be confiscatory but also retaliatory and discriminatory… . “ P.459.

35 P. 462.

36 External deference: forum-state-to-foreign-state.

37 P. 465.

38 Pp. 465-466.

39 Pp. 444-450.

40 P. 445.

41 P. 458.

42 Of course, the majority opinion leaves room for such an exception where a court deems it apt.

43 Henkin, note 20 above.

44 Pp. 425-427; Erie E. Co. v.Tompkins, 304 TJ. 8. 64 (1938); see Jessup, “The Doctrine of Erie Railroad v. Tompkins Applied to International Law,” 33 A.J.I.L. 740 (1939).

45 Pp. 408-412, 437-438.

46 Bussian Socialist Federated Soviet Republic v.Cibrario, 235 N.T. 255 (1923).

47 Wulfsohn v.Bussian Socialist Federated Soviet Republic, 234 N.T. 372 (1923).

48 This orientation also tends to reduce the relevance of the national locus of the forum to the outcome in a domestic court. Uniformity of judicial outcome is, of course, an ideal nowhere attained at present. Its closer approximation is an important aspect of the over-all commitment to the development of a universal system of legal order. And its explicit denial in the name of national values is a regressive acceptance of sovereign precedence in world affairs.

49 P. 410; and see footnote 12, p. 411, which calls attention to the literature that has criticized the preclusion of even unrecognized governments from access to our domestic courts; as with Bernstein, here, too, there is evident, at least, a judicial willingness to reconsider. The indication of this willingness is a signal worth noting.

50 Hilton v.Guyot, 159 U. S. 113 (1895).

51 P. 412. 52 P 412. 53 George J. Firmage (ed.), A Garland for Dylan Thomas 152 (1963).

52 P. 412.

53 George J. Firmage (ed.), A Garland for Dylan Thomas 152 (1963).