Professor Martin may disagree on the merits, but what would be misleading would be to suggest that there is not a huge debate about the domestic status of customary international law and that much of this debate involves the Erie doctrine and the legitimate scope of federal common law. Bradley & Goldsmith and other critics of the internationalist position were quite aware of the developments that Professor Martin cites. The debate is complicated, and I won't repeat my own views here. (Shameless plug: Sorting Out the Debate Over Customary International Law, 42 Va. J. Int'l. L. 365 (2002).) My point, rather, is that the topic ought not be introduced at a point where the students don't have the tools to evaluate the arguments pro and con.
Ernie Young -----Original Message----- From: Francisco Martin <[EMAIL PROTECTED]> To: [EMAIL PROTECTED] Date: Fri, 8 Aug 2003 10:28:50 -0400 Subject: Re: Teaching Customary International Law in Con Law I 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
