Just a couple of points: 1. I'm in the process (again) of trying to figure out how to pack a decent smattering of the basics into a Con Law I course. Perhaps the key to our difference is simply that I think there are so many other more fundamental things to try to cover in an introductory survey.
2. You state as simple truths a number of points that are deeply controversial. For instance, a number of scholars think that federal courts have no power to apply CIL without authorization from the political branches, not that it just automatically binds U.S. courts. It's true that U.S. courts can't easily modify CIL (except that they can in the sense of establishing practice, just like any other pattern of official acts), but that's a separate question from whether it "binds" them. U.S. courts can apply French law, too (if, say, a contract calls for it), and they can't modify it, but they aren't "bound" by French law in any real sense. Likewise, I'm not sure what you mean by "reverse-Erie" analysis -- a concept that's muddy enough in its usual domestic context. I would think a state court would be just as free to ignore lower federal court interpretations of CIL as it is to ignore such interpretations of federal statutes or federal common law. Whether a state court ! could ignore a U.S. Supreme Court interpretation of CIL is a hard question that turns on whether you think CIL is somehow incorporated into federal law or possibly on more amorphous "one voice" concerns. Again, these are all complicated questions. Maybe your 1L's are a lot more together than mine are. But I'm still smarting from my attempt to teach the 11th Amendment in Con Law I a few years ago. Ernie Young University of Texas -----Original Message----- From: Jonathan Miller <[EMAIL PROTECTED]> To: [EMAIL PROTECTED] Date: Sat, 9 Aug 2003 15:43:21 PST Subject: Re: Teaching Customary International Law in Con Law I I would focus on other differences between customary international law and federal common law that I think make it unnecessary for students to draw connections between them. -- There may be pedagogical value in drawing the connection, but it is not misleading not to draw them. 1) The President can order a violation of customary international law that is binding on U.S. courts. The Executive cannot issue an order that a principle of federal common law be ignored. 2) Customary international law exists independently of U.S. courts. Unlike federal common law, U.S. courts must go through the process of looking at the practices of other nations to determine if a rule has emerged. Unlike federal common law, where there is unlimited interpretive discretion within the limits of stare decisis and the scope of a subject matter preempted, customary international law binds a U.S. court. There are many clearly established customary international law principles that it is outside the power of U.S. courts to modify. 3) Customary international law gets interpreted by both State and Federal courts, with State courts no more or less obligated to look at federal precedents than they are for the interpretation of federal statutes. Certain areas of federal common law require what is essentially a reverse Erie analysis. There is no question that one can have a rich discussion in an advanced course about the relationship between federal common law and customary international law, but given that they are different animals, they can be taught independently as well. Jonathan Miller Southwestern University School of Law > Prof. Young writes: "The argument for customary international law as it is > most often made is that it has the same status as federal common law, and > it is similar in form as well as it comes from the courts rather than the > legislature. All of the general separation of powers, federalism, and > democratic concerns with federal common law are very similar for customary > international law. Perhaps the authority for it can be rationalized in > terms of executive acquiescence, but as a practical matter, applied in > human rights litigation for example, it is law divined by courts." > > COMMENT: I am a little puzzled by your statement that customary > international law as a practical matter is law divined by courts in, e.g., > in human rights litigation. Most of the international human rights > litigation (both in U.S. and international courts) of which I am aware uses > multilateral human rights treaties that were not established by domestic or > international courts. These treaties were adopted/ratified by > representatives of the nation-state. In fact, I am having trouble thinking > of many cases that strictly used CUSTOMARY international human rights law > because there just wasn't much out there until treaties started to > articulate them. > > Prof. Young continues: "Moreover, the jurisprudence at the origins of > debates over federal common law -- the law merchant of Swift v Tyson -- > _was_ customary international law. So both as a matter of substance and of > pedagogy, I think the questions ought to be linked. And whether or not you > agree on the merits, the question just _are_ linked in the literature > debating this issue." > > COMMENT: I agree with you as to the fact that federal common law has been > linked to customary international law in the literature. > > Francisco Forrest Martin > --------------------------------------------- This message was sent using Endymion MailMan. http://www.endymion.com/products/mailman/
