Copernicus Speaks: Even More on Customary International Law and Sosa v. Alvarez Machain

by Julian Ku

Just in case some of our readers missed our panel at the American Society of International Law Meeting yesterday on customary international law, I would recommend you check out a very impressive and interesting exchange in the new online version of the Virginia Law Review – In Brief. The lead piece is by Judge William Fletcher of the U.S. Court of Appeals for the Ninth Circuit and a former law professor. In his comment on Fletcher’s writings, Professor John Harrison of UVA compares Fletcher’s importance in the scholarship on general common law (of which customary intenational law is one part) to Copernicus:

Suppose that Copernicus, as a public service, had undertaken to manage a planetarium designed on geocentric principles. Being Copernicus, he no doubt would have done a superb job, whatever reservations he may have had about the theoretical soundness of the business.

Judge William Fletcher, when he was Professor Fletcher, brought to his field a change close to a revolution, restoring general law to the conceptual universe and demonstrating the historical and theoretical inadequacy of the unsophisticated version of the Erie doctrine that had become dominant. By restoring the role of general law in the ontology of American jurisprudence, he both improved our understanding of earlier thinking and opened up possibilities that had been closed to those who thought that every legal norm must be the creation of some identifiable sovereign.

So go check out what Copernicus has to say.

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