Fordham Law

Fordham Law Professor Cited in Supreme Court Opinion

April 25, 2008

Martin S. Flaherty, Fordham Law Leitner Family Professor of International Human Rights Law and Co-Director of the Leitner Center for International Law and Justice, was cited in Justice Stephen Breyer's dissent following the March 25 US Supreme Court decision in Medellin v Texas.

"Medellin v. Texas is a very complex case in which Mexicans on death row in Texas sought new trials based on the state's violation of a treaty signed by Mexico, the US, and many other countries," said Flaherty. "That said, Justice Breyer was clearly correct on the previously well-established point that treaties are presumed to be self-executing and that this view comports with both the text and the original understanding of the Constitution."

Justice Breyer, joined by Justices Ginsburg and Souter, dissented on the ground that a treaty obligation is self-executing and requires no further legislative action in order for it to create binding federal law that preempts state law.

Flaherty's article, History Right?: Historical Scholarship, Original Understanding, and Treaties as "Supreme Law of the Land", 99 Colum. L. Rev. 2095 (1999), was used to support Breyer's claim. Flaherty's publication argues that the Founding generation intended treaties to be the "Supreme Law of the Land" when the Constitution was ratified.
Breyer concluded that the Court majority's view that the "absence or presence of language in a treaty about a provision's self-execution proves nothing at all." He warned that such a requirement may "threaten the application of provisions in many existing commercial and other treaties and make it more difficult to negotiate new ones."

"One of the main issues in this case was whether the treaty in question applied automatically, without any further act of Congress," said Flaherty. "Justice Breyer said yes and the Court more or less said no, and potentially damaged the domestic status of all treaties in the US."

To read the dissent in its entirety, visit

For more information on Professor Flaherty's article, visit


Contact: Stephen Eichinger