Abstract

http://ssrn.com/abstract=1476482
 


 



Customary International Law, Federal Common Law, and Federal Court Jurisdiction


Gwynne Skinner


Willamette University - College of Law

September 21, 2009

Valparaiso University Law Review, Vol. 44, 2010

Abstract:     
This essay-article addresses federal common law’s proper recognition of customary international law and the implications of that recognition for jurisdiction under 28 U.S.C. § 1331. After describing the current debates regarding the role of customary international within federal law, the essay-article argues that customary international law itself is not wholly incorporated into federal law; rather, federal courts have common law power to recognize and incorporate rules of customary international law when developing federal common law in areas of federal interest, including in cases that might impact foreign affairs. In this way, it is federal common law, not customary international law itself, that is “law of the United States” for purposes of Article III and 28 U.S.C. § 1331, and as such, falls within § 1331 jurisdiction.

Number of Pages in PDF File: 22

Keywords: Customary international law, federal common law

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Date posted: September 21, 2009 ; Last revised: July 3, 2010

Suggested Citation

Skinner, Gwynne, Customary International Law, Federal Common Law, and Federal Court Jurisdiction (September 21, 2009). Valparaiso University Law Review, Vol. 44, 2010. Available at SSRN: http://ssrn.com/abstract=1476482

Contact Information

Gwynne Skinner (Contact Author)
Willamette University - College of Law ( email )
245 Winter St. SE
Salem, OR 97301
United States
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