Sosa and the Retail Incorporation of International Law

Since its release in 2004, Justice Souter’s majority opinion in Sosa v. Alvarez-Machain has become something of a Rorschach blot, in which each of the contending sides in the debate over the domestic status of customary international law (CIL) sees what it was predisposed to see anyway. Neither the thoughtful article by Professors Curtis Bradley, Jack Goldsmith, and David Moore, nor this comment upon that article, is any exception to that tendency: we, too, read Sosa as vindicating our previously expressed positions on this debate. That is an embarrassing situation for scholars all round, and it counsels caution in interpreting what the Court actually did and said in Sosa. But the willingness of all sides to claim victory doesn’t mean that nobody, in fact, won. I think that CIL revisionists like Professors Bradley, Goldsmith, and Moore (with whom I consider myself at least a fellow traveler) have the better claim on Sosa. In this brief comment, I hope to explain why.