22 Pages Posted: 21 Sep 2009 Last revised: 3 Jul 2010
Date Written: September 21, 2009
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.
Keywords: Customary international law, federal common law
Suggested Citation: 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: https://ssrn.com/abstract=1476482