Abstract

http://ssrn.com/abstract=10470
 
 

Citations



 


 



Customary International Law as Federal Common Law: A Critique of the Modern Position


Curtis A. Bradley


Duke University - School of Law

Jack Landman Goldsmith III


Harvard Law School


in the Harvard Law Review, Vol. 110, No. 4 (1997).

Abstract:     
In the last twenty years, a consensus has developed among courts and scholars that customary international law has the status of federal common law. We label this consensus the "modern position." Courts have endorsed the modern position primarily to support their conclusion that international human rights lawsuits between aliens "arise under" the laws of the United States for purposes of Article III of the Constitution. Scholars have pushed the consequences of the modern position further by arguing that customary international law preempts inconsistent state law under the Supremacy Clause, binds the President under the Take Care Clause, and even supersedes prior inconsistent federal legislation. In this Article, we question the modern position's historical validity, and show that its recent rise to orthodoxy has been accompanied by little critical scrutiny. We then question contemporary arguments for the modern position and show how these arguments depart form basic understandings about American representative democracy, federal common law, separation of powers, and federalism. We conclude that, in the absence of authorization by the federal political branches, customary international law should not have the status of federal law. This conclusion requires less change in judicial practice than might commonly be thought. Nonetheless, the story of the modern position's rise and continued influence presents cautionary lessons for a democratic society increasingly governed by international law.

JEL Classification: K33

Accepted Paper Series


Not Available For Download

Date posted: June 11, 1997  

Suggested Citation

Bradley, Curtis A. and Goldsmith, Jack Landman, Customary International Law as Federal Common Law: A Critique of the Modern Position. in the Harvard Law Review, Vol. 110, No. 4 (1997).. Available at SSRN: http://ssrn.com/abstract=10470

Contact Information

Curtis A. Bradley (Contact Author)
Duke University - School of Law ( email )
Box 90360
Duke School of Law
Durham, NC 27708
United States
Jack Landman Goldsmith III
Harvard Law School ( email )
1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
Feedback to SSRN


Paper statistics
Abstract Views: 4,333

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.359 seconds