[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. He is the co-editor (with David L. Sloss and Michael D. Ramsey) of International Law in the U.S. Supreme Court: Continuity and Change (2011).]
One of the many virtues of Professor Curtis Bradley’s new book International Law in the U.S. Legal System is that it presents both sides of the arguments. That is certainly true of the chapters addressing customary international law. For example, Curt and I have differed in the past over whether customary international law is part of the “Laws of the United States” under Article III of the Constitution, so that Congress may, if it wishes, grant the federal courts subject matter jurisdiction over suits arising under customary international law. But he points readers to my
argument that customary international law does fall within Article III, while of course giving his own view that it does not (pp. 141-42, 199-200).
Sometimes, however, a subtle slant can sneak into the way an issue is framed. In Chapter 5, Curt tells the by now familiar story that customary international law was understood at the framing to be part of general common law (pp. 142-46), that the Supreme Court’s 1938 decision in
Erie Railroad v. Tompkins destabilized the situation by ending the general common law regime (pp. 146-47), and that
Sabbatino,
Filartiga, and the Restatement (Third) of Foreign Relations Law supported the possibility of customary international law as federal common law (pp. 147-52), before laying out his challenges to “the federal common law claim” (p. 155). He points out that if customary international law were federal common law for Article III purposes (as
Filartiga held), then it might also preempt inconsistent state law under the Supremacy Clause of Article VI and bind the President under the Take Care Clause in Article II (pp. 152-54). “It is not clear,” he writes, “what federal law source exists for the wholesale incorporation of CIL into federal common law” (p. 156).