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Customary International Law and the Question of Legitimacy

Responding to Curtis A. Bradley, Jack L. Goldsmith & David H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 Harv. L. Rev. 869 (2007)

In 1997, Professors Curtis Bradley and Jack Goldsmith shook the international law academy by arguing that the Supreme Court’s decision in Erie Railroad Co. v. Tompkins made it illegitimate for federal courts to continue to apply customary international law (which they called CIL) without further authorization from Congress. The Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain seemed to reject this argument, holding that federal courts could apply customary international law under the Alien Tort Statute (ATS) without any authorization beyond the jurisdictional grant. Undaunted, Professors Bradley and Goldsmith (joined now by Professor David Moore) have returned to claim that Sosa in fact supports their argument and that “courts can domesticate CIL only in accordance with the requirements and limitations of post-Erie federal common law.” In my view, their latest article not only misinterprets Sosa but also raises fundamental questions concerning both the legitimacy of customary international law itself and the legitimacy of requiring its express incorporation into the U.S. legal system, a requirement that is contrary to the understanding of the founding generation.