Online Workshop Comment: Is Customary International Law Part of the “Law of the United States”?

Online Workshop Comment: Is Customary International Law Part of the “Law of the United States”?

I want to thank David again for agreeing to join us here at Opinio Juris for the next couple of days to discuss his forthcoming article (written with Curtis Bradley and Jack Goldsmith), “Sosa, Customary International Law, and the Relevance of Erie” (the “Article”). The Article demonstrates to me that Sosa has not ended the debate about CIL that Curt and Jack launched 10 years ago. I agree with you all that the Sosa Court has still not explained fully how or why CIL is integrated into the U.S. legal system post-Erie. On the other hand, neither does the Article, at least to my satisfaction.

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Beth Stephens
Beth Stephens

Ten years after publication of their first attack on the “modern position,” Professors Bradley and Goldsmith, now joined by Professor Moore, continue to undermine the strength of their argument by opposing exaggerated (and simplistic) categories – “the modern position” and the “revisionists.” Elsewhere, they acknowledge that the group they lump together as the modernists includes a range of views about the modern import of customary international law. One such view is amply supported by the Sosa decision: customary international law is a source of federal common law to be applied in appropriate cases. That is not to say that it is incorporated in toto into federal common law. But it does signify that it can be relied upon by the federal courts in a range of situations (some of which they identify in their article), that it is federal (not state) law, and that disputes about its interpretation raise federal questions. That said, I’m more interested at the moment in their interpretation of the impact of Sosa on the ongoing Alien Tort Statute litigation. Two points here: First, they conclude that Sosa is a rejection of much of Filartiga and its progeny only by misinterpreting those cases. The Filartiga line… Read more »

The Volokh Conspiracy

Opinio Juris Workshop on Sosa and Customary International Law:

Opinio Juris has launched an Online Workshop on “Sosa, Customary International Law, and the Continuing Relevance of Erie.” Thus far, it has con…

Dilan Esper

Why, exactly, is there anything strange about a statute that confers jurisdiction to hear claims based on “tort only, in violation of the law of nations” being interpreted as allowing the federal courts to look at the law of nations (including customary international law) as furnishing the rule of decision in cases brought pursuant to the jurisdictional grant?

Professor Ku expresses wonderment at the idea that when Congress says “law of nations” or “law of war” in a statute, that this means that the courts will have to determine what those concepts mean. I don’t see how that is even controversial.

One can, of course, argue what norms are included in the “law of nations”, and one can also argue what portions of the “law of nations” give rise to tort liability. One can even argue that nothing in the “law of nations” gives rise to tort liability, although that position trips on the notion that Congress must be presumed to have been doing SOMETHING when it enacted 28 U.S.C. § 1350.

But the contention that courts cannot look to international law when Congress tells them, specifically, to look to international law is nonsensical.