Customary International Law as Federal Common Law: A Critique of the Modern Position

"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. They then question contemporary arguments for the modern position and show how these arguments depart from basic understandings about American representative democracy, federal common law, separation of powers, and federalism. Professors Bradley and Goldsmith conclude that, in the absence of authorization by the federal political branches, customary international law should not have the status of federal law. This conclusion requires less change in judicial practice than might commonly be thought. Nonetheless, the story of the modern position's rise and continued influence presents cautionary lessens for a democratic society increasingly governed by international law." [While this article does not specifically address women's rights, it is included here because of its place in the academic debate concerning the domestic implementation of international human rights law. See a response by Harold Hongju Koh, Is International Law Really State Law?, annotated in this section of the WHRR.]