SOSA v. ALVAREZ-MACHAIN - Legal Information Institute

Cite as: 542 U. S. ____ (2004) 31Opinion of the Courta specificity comparable to the features of the 18thcenturyparadigms we have recognized. This requirementis fatal to Alvarez’s claim.AA series of reasons argue for judicial caution whenconsidering the kinds of individual claims that mightimplement the jurisdiction conferred by the early statute.First, the prevailing conception of the common law haschanged since 1789 in a way that counsels restraint injudicially applying internationally generated norms.When §1350 was enacted, the accepted conception was ofthe common law as “a transcendental body of law outsideof any particular State but obligatory within it unless anduntil changed by statute.” Black and White Taxicab &Transfer Co. v. Brown and Yellow Taxicab & Transfer Co.,276 U. S. 518, 533 (1928) (Holmes, J., dissenting). Now,however, in most cases where a court is asked to state orformulate a common law principle in a new context, thereis a general understanding that the law is not so muchfound or discovered as it is either made or created.Holmes explained famously in 1881 that“in substance the growth of the law is legislative . . .[because t]he very considerations which judges mostrarely mention, and always with an apology, are thesecret root from which the law draws all the juices oflife. I mean, of course, considerations of what is expedientfor the community concerned.” The CommonLaw 31–32 (Howe ed. 1963).One need not accept the Holmesian view as far as itsultimate implications to acknowledge that a judge decidingin reliance on an international norm will find a substantialelement of discretionary judgment in the decision.Second, along with, and in part driven by, that conceptualdevelopment in understanding common law has come