Bradley, Curtis

In a previous article, the authors argued that the "modern position"- that customary international law has the domestic legal status of federal common law- is inconsistent with American representative democracy and federalism. This Article expands on this previous work: "Part I briefly summarizes our thesis and explains why the legitimacy of human rights litigation is what is really at stake in debates over the modern position. Part II responds to criticisms of certain of our historical and constitutional claims.

"In the last twenty years, a consensus has developed among courts and scholars that customary international law has the status of federal law. Professors Bradley and Goldsmith label this consensus the "modern position". ... In this Article, Professors Bradley and Goldsmith challenge the modern position. They question the modern position's historical validity, and they show that its recent rise to orthodoxy has been accompanied by little critical scrutiny.