Sosa and Erie Continued

[Professor Bill Dodge teaches at Hastings College of Law and is an expert on the Alien Tort Statute]

Last September, Opinio Juris hosted an online workshop to consider the forthcoming article by Curt Bradley, Jack Goldsmith, and David Moore, “Sosa, Customary International Law, and the Continuing Relevance of Erie.”

The article has now come forth, and I have written a brief response for the Harvard Law Review Forum. In it, I argue that Sosa rejected Bradley, Goldsmith, and Moore’s position that courts must find positive authority for the incorporation of customary international law into the U.S. legal system before they may apply it in cases over which they have jurisdiction. I further argue that the author’s positive incorporation requirement lacks legitimacy because it is inconsistent with the original understanding and has no foundation in either statutory law or the Constitution, thus failing Erie’s own test of legitimacy. Finally, I defend the legitimacy of customary international law on the grounds that its requirements constrain the discretion of federal judges and that it may be overridden by Congress.