Prof. Young wrote: "I teach customary international law in Foreign Affairs and the Constitution, and a little bit in Federal Courts. But I don't teach it in Con Law I. I think it would be very difficult to do so when the students don't know anything about federal common law, and even harder in the many instances in which they won't have had Erie yet in Civil Procedure. I would worry that without those subjects as background, students would have a hard time following the serious debate about customary law's domestic status."
COMMENT: I think that to associate customary international law with federal common law (and especially Erie) is very misleading. Curtis Bradley and Jack Goldsmith did so without recognizing (as I recall) that contemporary customary international law is not so much common law anymore because it has become codified in different multilateral treaties, and such conventional customary international legal norms become binding on the U.S. through the Art. I (8) define and punish clause and Art. II treaty ratification clause. Francisco Forrest Martin
