Abstract

https://ssrn.com/abstract=2498681
 


 



The Case for Writing International Law into the U.S. Code


John F. Coyle


University of North Carolina School of Law

September 19, 2014

Boston College Law Review, Vol. 56, p. 433, 2015
UNC Legal Studies Research Paper No. 2498681

Abstract:     
In recent years, the U.S. judiciary has taken steps to limit the role played by international law in the U.S. legal system. This Article seeks to explain this retreat and to identify ways by which it may be reversed. It argues first that the present judicial retreat from international law is attributable to two causes: judicial attitudes and judicial inexperience. Many judges have ex-pressed some degree of ambivalence — occasionally rising to the level of hostility — about relying upon international law to provide a rule of decision. At the same time, many judges are largely unfamiliar with an ever-expanding array of international legal sources and methods. This Article contends that the end result of this combination of attitudes and inexperience is a pronounced reluctance among U.S. judges to give direct effect to certain types of international law. To date, many international legal scholars have responded to these developments by attempting to persuade the judiciary to rethink its basic approach to international law. This Article argues that a more promising approach would be to seek to persuade the other two branches of the federal government to enact domestic statutes that incorporate various international law rules. These statutory enactments would, among other things, enable the courts to ignore many of the doctrinal impediments that currently make it difficult for individuals to rely directly on international law as a source of rights. They would have a positive impact on the attitudes of skeptical judges. And they would help to alleviate the problem of judicial inexperience. With these goals in mind, the Article offers a number of practical suggestions as to how to draft statutes that incorporate international law so as to maximize the likelihood that such statutes — and the international law rules incorporated there-in — will be given their full effect by U.S. courts.

Number of Pages in PDF File: 60

Keywords: international law in domestic courts; incorporative statutes; Kiobel; Medellin; Sosa

JEL Classification: K33


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Date posted: September 21, 2014 ; Last revised: April 1, 2015

Suggested Citation

Coyle, John F., The Case for Writing International Law into the U.S. Code (September 19, 2014). Boston College Law Review, Vol. 56, p. 433, 2015; UNC Legal Studies Research Paper No. 2498681. Available at SSRN: https://ssrn.com/abstract=2498681

Contact Information

John F. Coyle (Contact Author)
University of North Carolina School of Law ( email )
Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-843-9634 (Phone)
HOME PAGE: http://www.law.unc.edu/faculty/directory/coylejohnf/

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