Customary International Law and the Question of Legitimacy

Abstract

This short piece responds to Professors Bradley, Goldsmith, and Moore's recent article "Sosa, Customary International Law, and the Continuing Relevance of Erie," 120 Harv. L. Rev. 869 (2007). I first argue that Sosa rejected the authors' position that courts must find positive authority for the incorporation of customary international law into the U.S. legal system before they may apply it in cases over which they have jurisdiction. I next argue that the author's positive incorporation requirement lacks legitimacy because it is inconsistent with the original understanding and has no foundation in either statutory law or the Constitution. Finally, I defend the legitimacy of customary international law on the grounds that its requirements constrain the discretion of federal judges and that it may be overridden by Congress.

Keywords: Sosa, Customary International Law

JEL Classification: K33