International Law in State Courts: Sovereignty, Resistance, Contagion, and Inevitability
23 Pages Posted: 7 Jun 2013
Date Written: June 6, 2012
This essay, written for a Spring 2012 symposium on international law and state government, explores the interaction of state courts and international law. The specific starting point for this exploration is the Oklahoma Save Our State Amendment and American Law for American Courts Model Act, which several states have adopted. To a large extent, this legislation reflects hostility to Islamic Law, but it also reflects suspicion about all kinds of foreign law, specifically including international law.
The essay continues by noting the extent to which U.S. law (federal and state) was open to international law in the founding era and throughout the 19th century (whether or not one thinks that international law was "automatically" part of federal or state law). State courts decided numerous questions of international law, particularly if one includes the 19th century state court decisions that at least in theory were applying the law merchant (which is certainly how the U.S. Supreme Court understood it in Swift v. Tyson).
The version of Austinian positivism articulated by the Supreme Court in Erie provides the theoretical basis for the contemporary rejection of international law. Under the categorical and territorial approach embraced by Holmes and Brandeis, international law simply is not law -- it has no political authority to back it up, and no territory to call its own.
The essay goes on to suggest several reasons why this version of positivism allows the current fear of international law to flourish. But, it also points out that state courts and state governments simply cannot avoid international law because it is already too deeply enmeshed in the U.S. legal system. The final part of the essay argues for the legitimacy of state court consideration of international law, but it also insists that the Supreme Court has the authority to review state court decisions on international law because any interpretation of international law by a state court implicates an important federal interest that includes, among other things, the question whether the international legal rule at issue should be incorporated into federal common law.
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