HARVARD LAW REVIEW

"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.

This article was written in response to Bradley and Goldsmith's argument against current international human rights litigation in the United States and the application of customary international law by federal courts. The author argues that history, doctrine, the Constitution and democracy support international law's place in federal law, and current human rights litigation also has firm historical, legislative and doctrinal footings.