Customary International Law in State Courts

Abstract:     
In recent years, scholars have debated whether customary international law (CIL) should hold the status of federal law in the American legal system. This debate between nationalists and revisionists has led scholars to make claims about the historical status of CIL in U.S. law. Yet there has been no serious historical review of state court treatment of CIL. This article seeks to fill this gap by describing the historical role of state courts in the interpretation and development of CIL in the American legal system. It aims to test the validity of nationalist claims about the role of state courts against the historical and doctrinal record of state courts applying CIL. While I do not purport to offer a definitive historical account, my discussion of the role of state courts in the application of CIL reveals that, at the very least, the revisionist understanding of how CIL has been incorporated into American law has far greater plausibility than nationalist critics have admitted.

Number of Pages in PDF File: 74

Keywords: federal courts, international law, constitutional law

JEL Classification: K33

Accepted Paper Series