Customary International Law and the Question of Legitimacy

William S. Dodge

Responding to Curtis A. Bradley, Jack L. Goldsmith, and 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.

120 Harv. L. Rev. F. 19 (2007) | DOWNLOAD PDF

Should Antitrust Condemn Tying Arrangements that Increase Price Without Restraining Competition?

Steven Semeraro :: In his article Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory, Professor Einer Elhauge attempted to demonstrate that tying, the practice whereby a firm conditions the sale of one product on the customer’s agreement to purchase another, always harms consumers. He determined that antitrust law should prohibit tying even when that tying did not restrain competition in the tied product’s market. In this response, Professor Steven Semeraro argues that this form of tying actually benefits consumers in the long term. READ MORE

Disappearing Neighbors

David D. Troutt :: In his article Mobile Capital, Local Economic Regulation, and the Democratic City, Professor Richard C. Schragger explored the consequences of local governments’ attempts to entice — and then exploit — mobile capital. He concluded that cities possess, but must not abuse, the power to assert democratic control over capital flow. In this response, Professor David D. Troutt argues that current foreclosure crisis demonstrates the weakness of cities in relation to mobile capital. READ MORE

Freeing Employee Choice: The Case For Secrecy in Union Organizing and Voting

Cynthia Estlund :: In his article Enabling Employee Choice, Professor Benjamin Sachs provided a nuanced analysis of what is wrong both with current law and with the leading reform proposal. In this response, Professor Cynthia Estlund argues that Professor Sachs’s reform proposal is likely to set the terms for future scholarly analysis and for serious public debate over the role of law in union organizing regardless of the fate of labor law reform in the current Congress. READ MORE

FORUM ARCHIVE

RSS FEED

Harvard Law Review
Gannett House
1511 Massachusetts Ave
Cambridge, MA 02138

Editorial Office:
617-495-7889
617-496-5053 (fax)

Business Office:
617-495-4650
617-495-2748 (fax)