Online Workshop: “Sosa, Customary International Law, and the Continuing Relevance of Erie”

Opinio Juris is delighted to have Professor David Moore as the presenter in our first “online workshop” over the next few days. David, along co-authors Curtis Bradley and Jack Goldsmith, has written an important article in a forthcoming issue of the Harvard Law Review assessing the status of customary international law in U.S. courts.

This article will be published in February, which is roughly the tenth anniversary of an earlier article in Harvard published by Bradley and Goldsmith. This 1997 article, “Customary International Law as Federal Common Law: A Critique of the Modern Position” is perhaps the most important and influential U.S. foreign affairs law article published in the past three decades.

In the 1997 article, Bradley and Goldsmith offered a startling critique of what they termed the “modern position” that treated customary international law as a form of “federal common law” enforceable in U.S. courts and preemptive of state law. They suggested that this modern position was unsupported by history, judicial precedent, or past practice. This critique spurred a vociferous response from many other prominent foreign relations scholars and arguably launched a new era in foreign relations law scholarship.

In the 2004 decision of Sosa v. Alvarez-Machain, the Supreme Court issued its first serious opinion discussing the status of customary international law in U.S. courts. Some suggested this decision represented a rebuke to the Bradley/Goldsmith critique. But joined by David Moore, Bradley and Goldsmith have offered their assessment of the effect of that decision on their original critique and on the status of customary international law more generally.

We’ll begin today with an opening post by David Moore laying out the argument. Opinio Juris contributors and some guest contributors will offer their comments and David will respond online over the next two days. We look forward to having a freewheeling online discussion.