Continued from here.
What divides the two groups in the foreign law debate? I will make a few conjectures, again with the proviso that I am supplying broad generalizations and do not mean to attribute any of these views to any particular person (including Koh) on either side of the debate.
Doctrine. Much of the debate in the academic literature has been carried out at the level of doctrine. The Bradley and Goldsmith article I mentioned in my previous post made a doctrinal argument, about what courts really do or should do; their critics took issue on these grounds. In his series of posts criticizing Koh, Ed Whelan also made doctrinal arguments. Whelan